Defamation / Reputation
Johnson v. Steele
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The High Court of Justice of England and Wales dismissed actor Johnny Depp’s libel claim after finding that an article and headline accusing him of domestic abuse were substantially true in meaning. The article was published in The Sun newspaper and accused Mr Depp of abusing his ex-wife Amber Heard, causing her significant injury and leading her to fear for her life. Mr Depp sued The Sun’s publisher, News Group Newspapers, and the article’s author, Dan Wootton for defamation. Pursuant to the defense of truth under the Defamation Act 2013, the defendants sought to prove that the meanings of the article were substantially true, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life”. Mr Justice Nicol held that the meaning of the article was substantially true and dismissed Mr Depp’s claim. He specifically evaluated 14 incidents allegedly demonstrating Mr Depp’s abusive behavior towards Ms Heard and concluded, based on a plethora of information about Mr Depp’s conduct and competing versions of events, that a large majority of the incidents and allegations were credible. Thus, they sufficiently met the civil standard of proof in showing that the article was true “on the balance of probabilities”. In a subsequent judgment dated March 25, 2021 the Court of Appeal refused Mr. Depp’s application for permission to appeal against Mr. Justice Nicol’s dismissal of his libel claim against the Sun.
The claimant in this case was the American actor known as Johnny Depp. On April 27, 2018, an article was published on the website of the The Sun newspaper. It was headlined “GONE POTTY How Can J K Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?”. From approximately 7:58am on April 28, 2018 the headline changed to “GONE POTTY How Can J K Rowling be ‘genuinely happy’ casting Johnny Depp in the new Fantastic Beasts film after assault claim?”. The content of the article remained the same and a hard copy edition of the newspaper included the article under the altered headline.
The “articles”, as collectively referred to by Mr Depp, dealt with Mr Depp’s relationship with his ex-wife Amber Heard. Mr Depp and Ms Heard separated on or around May 22, 2016 and divorced in California. The article focused on domestic violence perpetrated by Mr Depp. In essence, the meaning attributed to the article was that Mr Depp was guilty of serious domestic violence against Ms Heard; he caused her severe injury and she subsequently feared for her life. Moreover, it noted that Mr Depp was subject to a continuing restraining order and was “not fit to work in the film industry” [para. 7].
Mr Depp claimed that the article had caused “serious harm to his personal and professional reputation” [para. 9] and sought damages. Specifically, he pointed to the seriousness of the allegations; the large extent of the publication; the effect of the accusations in light of both the #MeToo and Time’s Up movements; other particular aspects of the article.
On June 1, 2018, Mr Depp raised a libel claim against the defendants, News Group Newspapers, Ltd. and Dan Wootton. The former was the publisher of The Sun newspaper and the owner and publisher of its associated website. The latter, designated as the Executive Editor, wrote the article that was the subject of the libel claim.
Mr Justice Nicol sought to determine whether the defendants had defamed Mr Depp. The claimant argued that the articles “caused serious harm” to his reputation, pursuant to section 1 of the Defamation Act 2013, and this was accepted by the defense in written closing submissions. Thus, the burden of proof rested on the defendants to prove that the libel was “”substantially true” as per the defense of truth under section 2(1) of the Defamation Act 2013.
Referencing In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563, the Court noted that the standard of proof was the balance of probabilities, i.e. “is it more likely than not that the claimant did what the articles allege?” [para. 41]. In addition, satisfying this standard would vary depending on the “strength or quality of the evidence” required for each allegation to be proven.
In accordance with this process, the Court proceeded to evaluate the defense’s assertion that Mr Depp was controlling and abusive towards Ms Heard throughout their relationship, specifically assessing 14 incidents that the defense alleged demonstrated this behavior. Whether or not all the incidents were proven, the aim was to show that the articles’ single allegation of Mr Depp’s abuse was substantially true.
Mr Depp denied the allegation that he abused Ms Heard, claiming he never assaulted her and that it was actually Ms Heard who assaulted him. This argument was a constant theme in response to the specific incidents raised by the defendants. Mr Depp also contended that Ms Heard should not be believed by the Court, outlining separate incidents where Ms Heard was allegedly dishonest.
The defendants argued that Mr Depp had beaten Ms Heard and caused her to suffer significant injury and fear for her life. The defendants pleaded that during their relationship, Mr Depp was controlling and abusive towards Ms Heard, especially when under the influence of alcohol and/or drugs. They cited 14 incidents. They countered the separate incidents Mr Depp noted, claiming Ms Heard was to be believed.
The meaning of the articles was initially identified. Neither party sought to differentiate between the versions and despite the headline changing, the differences were treated as immaterial. Mr Justice Nicol held that the meaning of the words complained of was as contended for by The Sun, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life”.
The Court started with general submissions made by the claimant which “transcended the individual incidents” [para. 107]. Though these submissions were aimed at leading the Court to disbelieve Ms Heard’s account of domestic violence, no real weight was given to them to reflect negatively on Ms Heard’s standing.
The Court also reviewed past incidents of violence by both Mr Depp and Ms Heard against third parties. The Court noted that Ms Heard’s history of violence was relevant to, firstly, establishing that any violence used by Mr Depp was not unjustified and, secondly, establishing Mr Depp’s claim that Ms Heard was actually the violent party and her denial of it reflected poorly on her credibility. However, there was no evidence of any previous convictions for violence regarding Ms Heard and the episodes referred to where she was said to have been violent proved meaningless. Likewise, there was no evidence of any previous convictions for violence by Mr Depp, and his referenced episodes were similarly not of “any great assistance” [para. 188] to deciding the main issue.
The Court then proceeded to individually consider each of the 14 incidents relied on by the defendants which exemplified Mr Depp’s abuse of Ms Heard. In reviewing the details of each incident, as well as the background information outlined previously, the Court was persuaded by some key factors. These included Mr Depp’s problematic drug and alcohol use, which Ms Heard argued fed his violent alter ego, referred to as “the monster” [para. 165]. The Court examined various threads of correspondence between Mr Depp, Ms Heard, and third parties and heard from numerous witnesses. It accepted that this alter ego was not merely a fiction and he was adversely affected by drugs and alcohol. There was also a tendency for Mr Depp to grow jealous of Ms Heard’s company which contributed to him having an ill temper. Ultimately, while some facts and allegations remained uncertain, the Court found that the account of Mr Depp’s behavior by Ms Heard and the defense’s other witnesses better fitted with the evidence and was credible across the majority of incidents. The Court was generally not persuaded by Mr Depp’s versions of the incidents or his supporting witnesses, citing improbabilities, omissions, and contradictions – some of which resulted from Mr Depp’s own admissions. His refutations of Ms Heard’s accounts were also unconvincingly centered on peripheral details and a recurring idea that Ms Heard was orchestrating a “hoax” [para. 577].
Following all the case’s elements, the Court concluded by considering the evidence more globally. It noted that the great majority of alleged assault incidents were proven to the civil standard, including the higher standard associated with the seriousness of the allegations. Only two incidents and an allegation of one incident did not meet the standard.
The Court was not moved by Mr Depp’s contention that it was unfair for Ms Heard, as his “effective opponent” [para. 576], to take part so freely in the proceedings without being an actual party and without an obligation of disclosure. While Ms Heard was a third party and not obliged to make disclosure, the claimant’s application for her to nonetheless make disclosure did not satisfy the “stringent conditions” [para. 576] attached to such applications. Furthermore, given his access to ample legal advice, Mr Depp should have understood the consequences attached to deciding which parties to sue and how that would affect disclosure requirements. He ultimately chose to sue the two defendants in the case, not Ms Heard.
Regarding Mr Depp’s evidence against the incidents, the Court noted Mr Depp’s continual argument that Ms Heard had “constructed a hoax” as an “insurance policy” [para. 577] in case their marriage fell apart. Mr Depp added that Ms Heard recorded him to apparently help him with understanding his violent alter ego, yet she never showed him any of these recordings. Mr Depp thus accused Ms Heard of being a “gold-digger” [para. 577]. The Court did not accept this portrayal, especially since Ms Heard had provided evidence of donating a $7 million payment she had received from her divorce settlement to charity. This evidence was not challenged by Mr Depp. Moreover, as the defense noted, Ms Heard would have taken other “various measures” [para. 577] if she were constructing a hoax. The Court agreed that those points further supported its conclusion that notions of “hoax” and “insurance policy” should be rejected. The Court additionally accepted that the allegations made by Ms Heard had negatively affected her career as an actor and activist. This point was not challenged by Mr Depp either.
The Court noted one last text by Mr Depp which it believed conveyed “something of Mr Depp’s feelings towards Ms Heard” [para. 580]. In the text, Mr Depp articulated, in colorful language and seeming passion, his antipathy for Ms Heard.
Overall, the Court stated that despite its judgment’s “excessive length” [para. 580], it had not been able to cover every point made on Mr Depp’s behalf. However, it had taken all points into account and decided to accept that the defendants had shown the words published were “substantially true in the meanings” [para. 581] that they were held to have. Thus, the claim was dismissed and Mr Depp’s action for libel was not successful.
In sum, while Mr Depp proved the necessary elements of his libel action, the defendants showed that the meaning of the published article was substantially true. In accordance with the Defamation Act 2013, this was a complete defense for the defendants, and it was unnecessary to consider further the article’s “fairness” or the defendants’ “malice” since they would be “immaterial to the statutory defense of truth” [para. 585].
In a subsequent judgment dated March 25, 2021 the Court of Appeal refused Mr. Depp’s application for permission to appeal against Mr. Justice Nicol’s dismissal of his libel claim against the Sun.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression because it dismisses the claim of defamation and favors the publishers of the newspaper articles, as well as the truth of the articles’ contents.
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Pursuant to section 1, the claimant argued that the articles “caused serious harm” to his reputation, which the defense’s written closing submissions did accept. Thus, as part of their defense, the burden of proof rested on the defendants to prove that the libel was “”substantially true” as per the defense of truth under section 2(1).
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