(WGHP) — The nation has been watching the case of Johnny Depp vs. Amber Heard for the past six weeks, and soon the case will be drawing to an end. The Virginia court case has spawned TikTok video trends, dozens upon dozens of Youtube videos, people quoting bunked pseudoscience as a “gotcha” to “prove” someone is lying, and celebrities facing backlash over mocking videos. There are allegations, with credibility, that bots are steering the conversation on social media in favor of Depp.
The virality of the trial means that many people are aware of it without knowing a lot about the details. The phrase “media circus” could certainly come to mind.
The case is a defamation lawsuit stemming from a 2018 opinion piece written in the Washington Post by Amber Heard where she reflects on how Hollywood shields powerful men, stating, “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” She goes on to describe being the victim of death threats and her career being negatively impacted by the allegations. Johnny Depp is not mentioned by name.
Depp is suing Heard for $50 million dollars, claiming that she defamed him and cost him work and tarnished his reputation. He alleges that her writing impacted his career, like his relationship with large franchises such as “Pirates of the Caribbean” and “Fantastic Beasts” and, furthermore, that she was the abuser in their relationship, not him.
What’s important to remember is that this is not a criminal trial, it’s a civil case that comes down to whether or not the words printed in a newspaper were true or not. No one will be charged with anything or be carted off to jail at the end of this. Amber Heard has not pressed criminal charges against Johnny Depp, nor has he pressed charges against Heard. Heard was granted a restraining order in 2016 during their separation, but that is the extent of legal action outside of the civil lawsuits filed by Depp.
This case is mired in spectacle and scandal at all levels. For instance, Depp has already lost a similar case in the UK against the tabloid “The Sun” over their description of him as a “wifebeater.” His lawyer, Adam Waldman, was dismissed from the Virginia case for leaking evidence to the press and social media. Waldman was described as a “Rasputin” figure in Depp’s life in a Hollywood Reporter piece shortly after Depp’s loss in the UK. Waldman also has possible ties to Russian oligarchs.
Heard attempted to have the lawsuit moved to California, which was dismissed, and filed a countersuit for $100 million after that dismissal. Recently, the judge dismissed Depp’s attempts to get the countersuit thrown out.
The location of Virginia is important to the lawsuit. Virginia is known for attracting “SLAPP” suits—strategic lawsuits against public participation—or frivolous lawsuits primarily designed to stifle speech due to lax laws regulating these things. “Forum shopping” is part of the issue. This refers to the act of moving lawsuits to jurisdictions that are more favorable to the case.
What is defamation?
Defamation is the act of making false, damaging statements about someone, either spoken (slander) or written (libel), according to Cornell Law. Defamation laws can vary from state to state but mostly follow the same civil standard across the board. America is considered a lot less “plaintiff-friendly” than Europe when it comes to defamation laws, meaning that it’s much harder for the person claiming they were defamed to prove it to the civil standard.
When discussing defamation, there are several elements needed to prove defamation. In order for Depp to win his lawsuit against Heard, he must prove the following things occurred:
A false statement presented as fact
For something to be defamation, it has to be an untrue statement presented as a fact. It must also be believable as fact — claims that are deemed ridiculous are not defamation, nor are expressions of opinion.
Allegations of rape, racism or abuse are serious and defamatory claims. Allegations that someone is a lizard person who is scheming to take over the world are not defamatory because they are not credible to the average person, nor is a person expressing an unfavorable opinion of something. (Accusing a coworker of theft, causing them to lose their job, is defamatory, but saying you “think” a coworker stole something is not.)
Depp is alleging that Heard’s Washington Post opinion piece is dishonest because he wasn’t abusive to her during their marriage and that she was the abusive party, therefore her characterization of herself in The Washington Post is false.
In the UK trial decided in November of 2020, the judge ruled that Heard has proven 12 out of 14 incidents of abuse by Depp “to the civil standard.” The other two incidents were dismissed due to evidence issues. Heard admitted to hitting Depp and throwing things at him to defend herself in a deposition, which are incidents he’s using as evidence of her abuse.
Publication or communication
Defamation must be communicated in some way — either verbally or written to another person. It can’t be said to the person being defamed. It has to be relayed to a third party in some way.
A person saying untrue things that they believe to be true is not defamatory. The person making the defamatory statement must be aware that they’re making untrue statements for something to be considered defamation.
Relaying information you heard from someone else that turns out to be false or misleading isn’t defamation. Put simply: defamation must start at the source and travel outward.
Damages or harm
Defamation has to do harm in order to be litigated. Often this means monetary damages, such as the loss of work, but reputational damages can be considered as well.
Depp is suggesting Heard ruined his reputation in her article about domestic violence, despite not naming him in it. In fact, Depp left the Fantastic Beasts film after he lost his libel case in 2020, two years after the article was published. The Hollywood Reporter spoke with several PR experts and people within the industry who speculated that Depp’s own behavior contributed more to his troubles on these movie productions, calling him a “PR nightmare.”
Depp’s text to a friend, submitted as evidence in the lawsuit, indicates that he was dissatisfied with the Pirates of the Caribbean movies during filming, however, implying he didn’t have any intention of returning as Jack Sparrow and Depp was still paid for his involvement in Fantastic Beasts after being asked to leave the project when he lost the UK libel lawsuit, which calls into question the amount of financial damage actually suffered.
The 1964 case “New York Times Co. vs Sullivan” changed how defamation cases are handled for specifically public figures. The fault element for public officials was upgraded to “actual malice.” Basically, a plaintiff has to prove that the defendant had knowledge that the defamatory statement is absolutely false and they published the statements with a “reckless disregard for the truth.”
Actual malice is an extension of the first two factors. The intention behind this is to allow people to feel comfortable discussing controversial topics relating to a public figure without fear of retribution. The burden of proof is higher for actual malice.
Another component of defamation is often “identification.” A person has to be identified by name, or in other ways that are specifically identifiable, for a defamation accusation to hold weight. If the accused defamation could be about anyone, it’s not considered defamation.
Heard’s Washington Post article doesn’t identify Johnny Depp by name, nor does it discuss her allegations of abuse with any specificity, focusing primarily on the backlash and how her life was impacted. However, due to the public nature of their careers as actors and the common knowledge of their divorce and the allegations, it’s easy to identify Depp as part of the post, even if he’s not named.
United Kingdom Case
In the United States, a less “plaintiff-friendly” country, the burden of proof in defamation is on the plaintiff, meaning that Depp is responsible for providing evidence to back up his claim or dispute and debunk Heard’s evidence.
However, he lost a similar suit in the United Kingdom near the end of 2020, where the defamation laws are slightly different. In the United Kingdom, the defendant shoulders the burden of proof. Depp said that the tabloid “The Sun” defamed him by calling him a “wifebeater,” again alleging he was the victim of abuse and not a perpetrator, therefore characterizing him as a “wifebeater” is defamatory.
Per United Kingdom defamation laws, “The Sun” had to defend its use of the epithet “wifebeater” and succeeded in proving that they were not intentionally dishonest or malicious in its use of the epithet.
From the ruling: “For all of these reasons I accept that the Defendants have shown that the words they published were substantially true in the meanings I have held them to bear. The Claimant has not succeeded in his action for libel.“
The judge ruled in “The Sun’s” favor, stating that Heard’s allegations of abuse were true. The ruling states court found no evidence that she abused him, and determined that the violence she engaged in during their marriage was in defense of herself and others or as a result of his abuse.
So, in the more “plaintiff-friendly” England, the judge ruled against the plaintiff, Depp, and declared they believed Heard had not done anything wrong.
The Virginia suit is the next legal battlefield where he faces laws that are less friendly to those accusing defamation.
Essentially, the lawsuit is only to determine whether or not Heard lied in her op-ed and, if she was dishonest, that those purported lies harmed Depp’s career and reputation and nothing else.