The High Court Trial involving Johnny Depp against News Group Newspapers (“NGN”), the publisher of a tabloid newspaper the Sun concluded after three weeks of graphic testimony, in which the Hollywood star admitted to years of drug abuse but denied any violence toward his ex-wife, Amber Heard. Depp is suing the Sun for libel over an article published by the newspaper in 2018 which described the Pirates of the Caribbean star as a “wife beater”.
The trial, being held across five different courtrooms due to the coronavirus pandemic, has attracted a great deal of media attention. In this article we explain the basics of English libel, and how a complainant brings an action for libel taking advantage of potentially uncapped damages. This article is not intended as Legal advice but a brief summary of defamation and libel in particular. The perils of newspapers writing ill prepared or provocative articles and legal rights attached to defending yourself against the writing which they believe to be untrue and cause them distress, both emotionally and economically. The devil is always in the detail!
What is libel?
Libel is a written or “published” statement that is “defamatory” of another person. It differs from “Slander” which relates to unwritten verbal statements. To be libellous, the statement must be “published” and factually “false”. The written statement must also have adversely affected a person’s otherwise good reputation. The statements may be published in books, newspapers, magazine articles or online. The publication may also appear on TV.
In this instance NGN published and article questioning JK Rowling and why she had agreed to use ‘wife beater’ Depp in her films, or allowed it tacitly. Depp took this as a final straw against his character and duly issued in the UK against NGN.
The Depp case is expected to have significant ramifications to both the media and individuals and will afford the senior courts with an opportunity to clarify the law in this area and to bring it up to date for the digital age.
Why might someone make a claim for libel?
A published statement can cause serious harm or damage to a person’s reputation. The law affords a remedy for this
To succeed the following criteria must be met:
- there has been a written publication by a third party;
- the words within the publication were defamatory; and
- the words are reasonably understood to refer directly or indirectly to the claimant.
Importantly, if the statement and the writings are true then they cannot be libellous. There are various defences which we will comment on when the case is awarded.
The Johnny Depp Case
The Pirates of the Caribbean star declared in Court that the statements written about him by the Sun in relation to his ex-wife, Amber Heard, were both untrue and had caused serious harm to his reputation – which may have resulted in Depp not being cast for certain roles. Historically, most defamation cases were brought against newspaper and magazine tabloids, such as Naomi Campbell’s claim against the Daily Telegraph over a false story that Campbell was planning to organise an illegal elephant polo tournament in India. However, since social media has advanced, case law surrounding libel and slander has also rapidly developed.
In the common laws of libel, it is frequently said that the “burden of proof” in English defamation law falls upon the defendant. However the Defamation Act 2013 added a requirement that the claimant show “serious harm” was caused or was likely to be caused to the claimant’s reputation, adding a significant burden of proof upon the claimant
There have been several claims for libel due to statements made on Twitter, Instagram and personal blogs. In 2017, food blogger and political activist, Jack Monroe, won a libel claim against Katie Hopkins in respect of tweets that were found to be defamatory by the court. Monroe was awarded £24,000 in damages due to the two ‘tweets’ posted by Hopkins. This was the first time that the serious harm test under the Defamation Act 2013 was applied to Twitter and ‘tweets’.
What remedies can be sought for libel?
The remedies available can be as simple as the removal of the publication online and/or an apology/clarification with written “undertaking” not to repeat the statement. Where that remedy is not enough or available, and the matter proceeds to Court, an injunction can be granted to prevent the publication from being repeated or an existing publication further circulated or published. Damages may also be awarded – especially where, for example, as claimed by Depp, the defamation caused a loss of earnings
Damages for libel
The Defamation Act 2013 (“The Act”) created significant changes to previous law. One of the main practical changes was that a defamation case will no longer require a jury and is now exclusively left to the judge’s discretion.
The amount of damages awarded by a Court depends on how serious the allegation is and what harm has been caused. Serious harm may be caused to a business as well as a reputed individual. Prior to the Act, damages awarded in libel cases were capped at £215,000, however the Act removed this cap and developing case law requires the Court to examine the impact of the publication on the claimant when assessing damages. Defamation is a developing area of law that may be further clarified by the Courts in the Johnny Depp case.
There is also a requirement for the claimant, in this case Depp, to mitigate his losses. That is to ensure his losses do not become too unremoved from the claim and too broad.
What are the implications of the Case for Depp, NGN and Amber Heard?
Even if the courts find for the tabloid, it is inevitable that Depp’s reputation will have trouble recovering, as will Amber Heard’s. Johnny Depp’s barrister David Sherborne, stated that the biggest damage caused to Depp if he were to lose this case is the damage to his reputation, and subsequently acting career. In his closing statement on Wednesday he maintained that the most important aspect for Depp “is clearing his name of these appalling allegations, expanded on as it has been over the last four years, as a result of which he has lost nothing less than everything, he would say.”
Many legal experts maintain that the odds favour Depp due to England’s strict libel laws that put the burden of proof on the media. If News Group Newspapers do not win the case, the tabloid could be put in financial danger as they will have to cover substantial court expenses and pay damages in the middle of a media industry crisis made worse by the coronavirus pandemic.
The tabloid’s defeat in court could also seriously endanger ex-wife Amber Heard’s Hollywood career. Defamation legal expert Emily Cox stated “If The Sun loses, Heard could well find herself ostracised by those movements and by Hollywood.” Heard made a poignant statement on the final day of the case standing by her testimony and maintaining that she will now place her fate in British Justice.
If the actor’s libel claim is not upheld by the court, then Depp will be required to pay both his and the newspaper’s legal costs – which will likely be more than the damages he would receive had he claim been successful. This will be a landmark defamation case with potentially the largest financial ramifications in damages and reputational harm that the UK has ever seen.
When will the case finally be settled?
Judge Andrew Nicol is at liberty to set the figure for any damages to be awarded in what the UK media have dubbed “the biggest English libel trial of the 21st century”, however it could take anywhere from a few weeks to three months for the verdict. This is due to the volume of information in the case which must be reviewed and deliberated by Judge Nicol. Whatever the ruling may be, the verdict could possibly be appealed all the way to the UK Supreme Court, which could also mean that legal costs will continue to rack up for both parties, whereby the loser ultimately will pay the winner’s cost in the end. It is undeniable that the implications of this case will be life changing for Depp, Amber Heard and News Group Newspapers.
Defamation cases are notoriously complex and large sums are often awarded for damages. An experienced solicitor understands the tactics of making a libel claim and drafting carefully worded pre-action letters before proceedings commence. If you have been a victim of libel, please feel free to get in touch with one of our litigation solicitors to work with you on a strategy to reach a settlement.
SO Legal Solicitors Eastbourne – 01323 407555
SO Legal Solicitors Brighton & Hove – 01273 069920
SO Legal Solicitors Hastings – 01424 709050
SO Legal Solicitors Uckfield – 01825 729840
SO Legal Solicitors Notting Hill – 0203 9677700