Johnny Depp v NGN: truth as the greatest defence

In 2018, Johnny Depp brought libel proceedings against News Group Newspaper Ltd (who own The Sun) (NGN), claiming that an article accusing him of violence towards his then-wife Amber Heard was defamatory. At a 16-day trial in July 2020, the Court dismissed Mr Depp’s claim, ruling that NGN had proven, on the balance of probabilities, that the allegations published about Mr Depp were “substantially true”. They therefore had a complete defence to the claim under s.2 Defamation Act 2013. Unsurprisingly, there has been a surge of media attention on the matter, describing it as “landmark” and “jaw-dropping”.

Background

The article in question was published on The Sun website on 27 April 2018, originally with the headline “GONE POTTY, how can JK Rowling be “genuinely happy” casting wifebeater Johnny Depp in the new Fantastic Beasts film?”. The term “wife-beater” was later replaced by “allegations of assault”. Although the accompanying article was primarily intended to berate JK Rowling for standing by the casting of Mr Depp in an upcoming Fantastic Beasts and Where to Find Them film, it included allegations relating to Mr Depp’s “clearly inexcusable behaviour” towards his ex-wife, referring to “overwhelming evidence” that he engaged in domestic violence that “led to her fearing for her life” and being granted a restraining order against him.

Mr Depp denies that he was ever violent towards Ms Heard. He sued NGN for defamation, claiming that the article meant, amongst other things, that he was guilty, on overwhelming evidence, of serious domestic violence against his ex-wife which had led to him being subjected to a continuing restraining order, and for that reason he is not fit to work in the film industry.

NGN sought to rely upon the statutory defence of truth under s.2 Defamation Act 2013, which provides a complete defence to allegations of defamation where it is shown that the meaning of the statements made is “substantially true” (referred to below as the “truth defence”). In doing so, NGN presented evidence of 14 separate incidents from throughout Mr Depp and Ms Heard’s relationship which they argued showed that he had been controlling and abusive towards her, especially when under the influence of alcohol and/or drugs.

The court’s decision

It was accepted by counsel for NGN that publication of the article had caused, or was likely to cause, serious harm to Mr Depp’s reputation. The primary issues before the Court at trial were therefore:

• the meaning that should be attributed to the statements made in the article; and
• whether those statements were “substantially true” such that NGN could rely upon the truth defence.

The meaning of the article

It was held, as contended by NGN, that the words used in the article meant that Mr Depp had committed physical violence against his ex-wife that had caused her to suffer significant injury and, on occasion, to fear for her life.

Whether the statements made were “substantially true”

The requirement for a statement to be “substantially true” falls short of it being true as we would understand in the everyday sense. The usual civil standard of proof (i.e. the balance of probabilities) applies, with the burden lying with the Defendant. It was therefore for NGN to prove that the article was “substantially true” by providing clear evidence that it was more likely than not that Mr Depp had done what was alleged.

As explained above, NGN provided detailed accounts of 14 separate incidents of Mr Depp acting violently towards Ms Heard, supported by both witness and documentary evidence. The extent to which the case turned on the quality of the evidence presented by NGN is evident in the attention which it received as the claim progressed. NGN made multiple applications for disclosure of documentary evidence held by third parties and each party submitted voluminous witness evidence, with Mr Depp’s legal team unsuccessfully challenging the credibility of Ms Heard as a witness. Both Mr Depp and Ms Heard gave evidence during the trial, alongside 18 witnesses called by Mr Depp and 6 witnesses called by NGN.

Nicol J accordingly had to embark upon an extensive fact-finding exercise, and the majority of his judgment is given to a detailed analysis of the evidence presented by the parties in relation to each of the alleged incidents of violence. Ultimately, he concluded that 12 of the 14 incidents had been proven by NGN to be substantially true on the balance of probabilities, and that on two of those occasions it was further proven that Ms Heard had feared for her life. The truth defence had therefore been established, and Mr Depp’s claim was dismissed in its entirety.

Comment

This hearing is unlikely to be the end of this matter. Mr Depp’s lawyers have described Nicol J’s judgement as “perverse and bewildering” and confirmed their intention to appeal. We also expect that this ruling will have some impact on Mr Depp’s US libel case against Ms Heard, relating to her opinion piece in the Washington Post detailing similar allegations.

This claim stands as a reminder of the inherent risks in pursuing libel claims. Somewhat ironically, this claim has only brought more attention to the allegations made and, arguably, has been more damaging to Mr Depp’s reputation than the original article, which would by now (over two years later) have likely been forgotten by the general public.

Given the relatively low level of damages usually awarded in libel claims brought in England & Wales, it is fair to assume that Mr Depp’s decision first to issue, and then to pursue this high-profile libel claim over two years, was most likely primarily driven by a desire to clear his name – a need so great that the possibility of an adverse outcome was worth the risk. This was perhaps exacerbated by his continuing role as Grindelwald in the lucrative Fantastic Beasts and Where to Find Them franchise to which the article related. Indeed, we note that shortly after Nicol J’s judgment was handed down, Mr Depp resigned from that role on the request of Warner Bros., the film studio behind the films.

Any individual or entity considering pursuing libel litigation would do well to bear Mr Depp’s claim in mind as a cautionary tale - where the defence of truth is raised, the Court will need to examine the veracity of the allegations (often in detail and by reference to documentary and witness evidence). It is that evidence and the scrutiny of it in a public forum that may cause more serious harm than the offending words that were originally published.

Read the full judgment here.

If you have any questions about the issues raised in this article, Simmons & Simmons has a dedicated reputation management team who can assist. Please get in touch with the contacts listed on the side of the page.