On April 11 2022, the $50 million defamation trial filed by Johnny Depp against Amber Heard, his ex-wife, began in Virginia.[1] The trial concerns a Washington Post op-ed that Heard wrote in 2018 in which she wrote about her experience with domestic abuse.[2] [3]Though she did not mention any specific names, Depp filed for defamation and argued his name was tarnished by the article.[4] More specifically, he argued that this article was detrimental to his career and he was not able to find acting roles and as a result, he was unable to profit from his profession.[5]
Two other cases, however, also matter in this defamation case. After Depp filed for defamation, Heard responded by filing a countersuit against Depp in 2020 for $100 million. She did so because Depp’s attorney referred to her statements in the article as being a “hoax”:
“The op-ed’s clear implication that Mr Depp is a domestic abuser is categorically and demonstrably false […] Her allegations… are part of an elaborate hoax to generate positive publicity for Ms Heard and advance her career.” [emphasis added][6] [7]
Also in 2020, Depp started a libel suit against a UK tabloid, The Sun, for referring to him as a “wife-beater”.[8]Depp’s ability to win a libel suit was higher in the UK than in the US, since in the UK the plaintiff must prove that the defamatory statements made about them are untrue.[9] In contrast, in the US the defendant has the burden of proof and must prove their statements were true.[10] Despite this advantage, Depp lost this case, and his failure in the British court is now being used to predict what will happen in the trial in Virginia. Some see Depp’s UK libel trial as a “trial run […] to the current American case.”[11] This does not bode well for Depp, because “the burden of proof is much higher in the US […] than the UK for a libel or defamation claim”.[12]
Another point of contention is that Depp argues he was the actual victim of domestic abuse throughout the course of their relationship. In their 2016 divorce proceedings, Heard cited domestic violence as a reason for their split and she filed for a temporary restraining order against Depp.[13] Depp has, however, constantly stated since 2019 that he was the victim of such abuse, not Heard.[14]
There is also some evidence of forum-shopping in this case. Depp’s attorneys argued that the trial should take place in Virginia, as the publisher of the article has major operations based here.[15] There is some question why the trial did not take place in California, where both Heard and Depp primarily spend their time. The likely reason is because of the difference between Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws in Virginia and California.[16] Anti-SLAPP laws are derived from the First Amendment and provide more “protection to speech and other activities that relate to matters of public interest.”[17] Since this case stems from Heard’s statements about domestic violence, it is deemed to be a matter of public interest, hence Heard has some level of added protection.[18] Notably, California’s Anti-SLAPP laws provide more protection than Virginia’s, and if the case took place in California Heard would have been able to invoke the Anti-SLAPP law as soon as the case began, and hence she would have a much higher chance of winning.[19] Depp’s attorneys made the strategic decision of moving the trial to Virginia, where Anti-SLAPP law cannot be invoked by defendants until later in the legal process.[20]
The closing arguments will be given on May 27, after which the jury will deliberate and their decision will be communicated to the judge. The jury will make decisions regarding both the suit and the countersuit.[21] In order for Depp to win the case, it must be proven “that Heard acted with actual malice in writing the op-ed.” The Supreme Court defines malice “as someone knowingly sharing information ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’”[22] §18.2-4.17 of the Code of Virginia says the following about libel and slander:
“Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any person of chaste character, any words derogatory of such person’s character for virtue and chastity, or imputing to such person acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or who shall use grossly insulting language to any person of good character or reputation is guilty of a Class 3 misdemeanor. The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.”[23]
Regarding the outcome of the trial, it’s expected that Depp will lose, especially considering he also lost a defamation case in the U.K. where the threshold for defamation is lower than in Virginia.[24] Whether Depp wins or loses is not of much concern to his attorneys, however. The publicity that the trial has received is what Depp primarily wanted, as it amplifies his voice and has given him a chance to prove his innocence.[25] Not everyone agrees, however. Ryan Baker, an attorney in Los Angeles who has experience with defamation cases, believes “that [Depp’s] strategy may be backfiring […] There are now endless opportunities for a peanut gallery to form. At the end of the day, is it better just to move on?”.[26] It is also likely that whoever the jury rules in favor of, there will be an appeal.[27] Whether this trial will be enough to clear Depp’s name remains to be seen, and this story will continue to develop as the trial comes to a close.
[1] Simmone Shah, ‘What to Know About the Defamation Trial Between Johnny Depp and Amber Heard As It Resumes’ (Time, 17 May 2022) <https://time.com/6177028/amber-heard-johnny-depp-defamation-trial-resumes/> accessed 22 May 2022
[2] Ibid
[3] Depp v Heard [2019] Civil Intake Sheet
[4] Simmone Shah, ‘What to Know About the Defamation Trial Between Johnny Depp and Amber Heard As It Resumes’ (Time, 17 May 2022) <https://time.com/6177028/amber-heard-johnny-depp-defamation-trial-resumes/> accessed 22 May 2022
[5] Dominic Patten, Ted Johnson, ‘Amber Heard Expected To File Motion To Toss Johnny Depp $50M Case; “Required” Move Expected To Fail’ (Deadline, 2 May 2022) <https://deadline.com/2022/05/johnny-depp-trial-motion-to-stike-amber-heard-defense-virginia-defamation-1235014328/> accessed 22 May 2022
[6] Simmone Shah, ‘What to Know About the Defamation Trial Between Johnny Depp and Amber Heard As It Resumes’ (Time, 17 May 2022) <https://time.com/6177028/amber-heard-johnny-depp-defamation-trial-resumes/> accessed 22 May 2022
[7] Holly Honderich, ‘Inside Johnny Depp and Amber Heard’s legal battle’ (BBC, 12 April 2022) <https://www.bbc.com/news/world-us-canada-61070988> accessed 22 May 2022
[8] Dominic Patten, Ted Johnson, ‘Amber Heard Expected To File Motion To Toss Johnny Depp $50M Case; “Required” Move Expected To Fail’ (Deadline, 2 May 2022) <https://deadline.com/2022/05/johnny-depp-trial-motion-to-stike-amber-heard-defense-virginia-defamation-1235014328/> accessed 22 May 2022
[9] Holly Honderich, ‘Inside Johnny Depp and Amber Heard’s legal battle’ (BBC, 12 April 2022) <https://www.bbc.com/news/world-us-canada-61070988> accessed 22 May 2022
[10] Ibid
[11] Dominic Patten, Ted Johnson, ‘Amber Heard Expected To File Motion To Toss Johnny Depp $50M Case; “Required” Move Expected To Fail’ (Deadline, 2 May 2022) <https://deadline.com/2022/05/johnny-depp-trial-motion-to-stike-amber-heard-defense-virginia-defamation-1235014328/> accessed 22 May 2022
[12] Ibid
[13] Ibid
[14] Ibid
[15] Holly Honderich, ‘Inside Johnny Depp and Amber Heard’s legal battle’ (BBC, 12 April 2022) <https://www.bbc.com/news/world-us-canada-61070988> accessed 22 May 2022
[16] Ibid
[17] Ibid
[18] Ibid
[19] Ibid
[20] Ibid
[21] Simmone Shah, ‘What to Know About the Defamation Trial Between Johnny Depp and Amber Heard As It Resumes’ (Time, 17 May 2022) <https://time.com/6177028/amber-heard-johnny-depp-defamation-trial-resumes/> accessed 22 May 2022
[22] Ibid
[23] Code of Virginia 1950, title 18.2, s 9(3)
[24] Simmone Shah, ‘What to Know About the Defamation Trial Between Johnny Depp and Amber Heard As It Resumes’ (Time, 17 May 2022) <https://time.com/6177028/amber-heard-johnny-depp-defamation-trial-resumes/> accessed 22 May 2022
[25] Ibid
[26] Holly Honderich, ‘Inside Johnny Depp and Amber Heard’s legal battle’ (BBC, 12 April 2022) <https://www.bbc.com/news/world-us-canada-61070988> accessed 22 May 2022
[27] Dominic Patten, Ted Johnson, ‘Johnny Depp To Be Called As Witness For Amber Heard Defense in $50M Trial’ (Deadline, 21 May 2022) <https://deadline.com/2022/05/johnny-depp-trial-testiony-defense-amber-heard-1235029690/> accesed 22 May 2022
