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Earlier this month, an American court delivered its judgment in the enormously published defamation case brought by Johnny Depp against his ex-wife, Amber Heard. The defamation case is undoubtedly one of the most significantly reported and commented upon cases of all time in the field of defamation. The case has been reported, and commented upon, on a global scale and many of the core facts are already well known.
This paper provides a summary of the background and an overview of the conduct of the case and the judgments delivered by the jury. It is not an outlandish remark to say that aspects of the conduct of the case and the judgments delivered by the Court could only have happened in the USA.
Johnny Depp is a very well-known and highly successful actor. He appeared in many well-known and successful movies, notably the Pirates of the Caribbean series. In those movies, he played the role of Captain Jack Sparrow. Upon a general recognition basis, he is most renowned for that role and, as one placard that was raised during the course of the defamation trial noted, he was America’s most famous pirate.
Amber Heard, his ex-wife, was also a successful actress in her own right. She initially gained fame and success in a number of horror movies but, playing a completely different role, that of the school age girlfriend of a marijuana smoking process server, she also enjoyed considerable success in the movie Pineapple Express. The expression ‘Pineapple Express’ refers to a strain of marijuana. Perhaps her most notable role was in the move Aquaman.
The parties were married in February 2015. It was, as both parties agreed, an acrimonious marriage (one of the few matters upon which they did agree) and, in May 2016, Ms Heard filed for divorce. That was granted in January 2017 and she reportedly received a property settlement of 7 million, which she pledged to charity.
Mr Depp’s claim in the United Kingdom
In June 2018, Mr Depp commenced defamation proceedings in England against News Group Newspapers Limited, being the publisher of The Sun newspaper, one of the UK’s famed tabloids. In substance, he alleged that the newspaper defamed him as being a wifebeater. In November 2020, after a fully defended trial, the Court in England dismissed the action by Mr Depp and found that the newspaper had proved the great majority of the alleged assaults to the necessary legal standard.
The article in question leading to the defamation proceedings in the USA
In December 2018, Ms Heard wrote an op-ed piece in the Washington Post. In the article, Mr Depp was not named but, in his defamation trial, he alleged that he was sufficiently identified. The jury ultimately found that he was, a finding that appears, based upon the facts that have been well publicized, to have been a correct one. Mr Depp alleged, in substance, that the op-ed piece gave rise to a defamatory meanings of domestic abuse and sexual violence.
The proceedings in the USA
The defamation proceedings commenced by Mr Depp were filed in March 2019. They were filed in the Fairfax County Circuit Court, being an appropriate Court having regard to the location of the Washington Post. The proceedings were heard by a seven-member jury and the jury ultimately found that the allegations made by Ms Heard were false. What was also necessary for Mr Depp to succeed with his claim was that he had to satisfy the Court that the piece by Ms Heard had been published with malice.
The damages awarded
The jury awarded Mr Depp 10 million in compensatory damages. It also awarded him $ 5 million by way of punitive damages but that amount was reduced by the Judge given that, in the State of Victoria, there is a cap on punitive damages of 350,000.00. Accordingly, the total awarded to Mr Depp was 10,350,000. He had claimed 50 million.
Paradoxically, the jury also found in favor of Ms Heard as a result of a counterclaim brought by her. She alleged that she had been defamed by Mr Depp and his lawyers and she claimed 100 million. The jury only made limited findings in favor of Ms Heard upon her counterclaim, specifically by reference to the allegation by Mr Depp’s previous lawyer in which he referred to Ms Heard’s allegations as being a hoax. The jury awarded 2 million to Ms Heard.
The differences in substance between the conduct of the trial in the USA and a defamation trial in Australia
There are many differences between the conduct of the trial in the USA and the conduct of a defamation trial in Australia. The trial was live streamed even though it included allegations of domestic violence. It attracted considerable attention both by way of physical presences outside the Court building and particularly by way of social media. The jury had access to the Internet and social media and it would be extremely surprising if members of the jury, despite any warnings from the Judge, did not view social media posts, and the media articles generally, when they were not in the Court room . The trial attracted a large number of posts, the majority of whom were supporters, even very dedicated supporters, of Mr Depp. From the perspective of an outsider lay observer, it appears that this case was very heavily influenced by social media commentary rather than necessarily by the evidence. On some days, the trial attracted more interactions on social media than any other topics of the day.
Ms Heard’s primary defense was that the defamatory meanings were substantially true. With a defense of truth in Australia, it is not necessary to prove malice and, indeed, malice, which addresses the state of mind of a person, has no part to play in a defense of truth. With a defense of truth either the defamatory meanings are, as a matter of fact, substantially true, or they are not. The reasonings for a finding by a jury are never articulated. Again, without a detailed scrutiny of all of the evidence and all of the submissions that were made, it is difficult to see how the jury, properly directed, could have found that Ms Heard published the piece with malice. There appears, when viewed objectively, to be no doubt that she truly believed in what she wrote.
The other significant difference between the judgments in this case and any defamation judgments in Australia relates to damages. In Australia, there is a cap on the award of general compensatory damages of about 30 430,000.00. Additional amounts can be awarded by way of aggravated damages. The amount awarded to Mr Depp is considerably in excess of any amount that would be awarded in any similar case in Australia. Further, in Australia punitive damages simply cannot, by law, be awarded. The irony has already been noted of the jury finding, firstly, that Ms Heard’s allegations were false, and were made with malice, and then, secondly, finding in her favor when Mr Depp’s former lawyer had accused Ms heard of engaging in a hoax.
The judgment in this case also sits uncomfortably with the judgment in the case in the UK in which Mr Depp failed with his action. As has happened, it is not inconceivable that the two Courts could deliver different outcomes and that is, realistically, not totally unsurprising given the manner in which the trial in the USA was conducted.
By Australian standards and, it is suspected, most global standards, the judgment in the USA, both as to liability and as to damages, was quite a remarkable one. It was one clearly influenced by a very prominent and very aggressive social media campaign.