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Public enemies: the implications of Johnny Depp’s libel loss2nd November 2020 Media Law
In most litigation, there is always an element of risk.
The fact that cases can turn on a judicial assessment of the evidence presented means that claimants are forced to consider the uncertainty of the outcome before bringing their case.
That is particularly true when it comes to defamation law.
Yet people have always been prepared to take litigation risks in order to protect their reputations, rather than accept the publication of defamatory statements.
As my colleague, Laura Wilkinson, told the Daily Telegraph in August, recent figures published by the Ministry of Justice have demonstrated that the number of defamation claims reaching court has almost trebled in the last three years.
The Depp decision is unlikely to dramatically reduce the number of libel claims being issued at court, but it does highlight some of the litigation risks.
It could be argued that the stakes are especially high for those public figures who feel compelled to challenge what they regard as unfair and untrue slurs on their reputation. They, it could be said, have even more to lose than those without a global image to protect.
An article in The Sun newspaper labelling Johnny Depp as a “wife-beater” prompted the most high-profile case of its kind in recent years.
As a high-earning Hollywood star over many decades, Mr Depp may not have been dissuaded by the likely legal costs associated with making a claim or the inevitable publicity which the case might be likely to attract.
However, evidence given during a three-week High Court trial involving Mr Depp and his former wife, the actress and model Amber Heard (who was a witness, but not a defendant), significantly developed the initial media accusation.
Details of a highly volatile relationship, which even a fixture in media gossip columns would possibly prefer to keep out of the headlines, were explored in the manner which News Group Newspapers, The Sun's publishers, needed to defend itself against his claim. The details were lurid and extensive.
Mr Depp had maintained that the 14 separate incidents upon which the newspaper based its arguments were, in part, "a hoax" perpetrated by Ms Heard.
However, Mr Justice Nicol, the Judge hearing the case, has now declared The Sun's allegation to be "substantially true". Truth is one potential defence to a defamation claim.
His judgment is based, of course, on the so-called 'civil standard', which requires libel cases to be decided on the balance of probabilities, rather than the standard of 'beyond reasonable doubt' needed to prove guilt in a criminal case.
Even so, the exhaustive ruling will come as a significant blow to Mr Depp, some of whose major roles in recent years have been in family-friendly cinematic fare such as the 'Pirates of the Caribbean' franchise distributed by Disney and 'Fantastic Beasts', the movie series based on stories by JK Rowling.
At a time when the #MeToo campaign has affected or ended the careers of major names in his industry, a court ruling that alleged physical assaults by him on Ms Heard were most likely true cannot fail but concern even a star well-used to the usual rough and tumble of the entertainment media.
In addition to his claim in the English High Court, a second libel claim by Mr Depp - this time against Ms Heard for an article published in the Washington Post - is still to take place in the United States. The English Court’s decision does not auger well for Mr Depp, albeit the US case may be before a judge and jury.
It may well be that the sizeable costs bill which Mr Depp will now face as a result of the failed legal action in London will be the least of his worries.