Johnny Depp: Through the Looking Glass of Libel Suits on Both Sides of the Atlantic
8.11.2021
What’s eating Johnny Depp? Defamation litigation. The heartthrob actor and former darling of Hollywood has been knocked back by the Court of Appeal in England, which has refused to grant him permission to appeal his libel loss in the “wife-beater” litigation. He has thus exhausted his English legal routes in his action against News Group Newspapers (NGN), publishers of The Sun. As a result, he now faces an application in the U.S. by his nemesis Amber Heard to dismiss his case against her in Virginia. The former Mrs. Depp is seeking to take advantage of the closed door in England to shut the litigation door in Depp’s face in Fairfax County. The argument goes a little like this: English Court of Appeal decision = final judgment + principles of comity + issue preclusion + claim preclusion > Hey, Presto! The claim against her should disappear.
Depp’s defeat in the English courts may have amounted to a nightmare on Fleet Street, but he may now also be headed towards some fear and loathing in Virginia. This article takes a dip into the litigation on both sides of the Atlantic and asks whether the star of Finding Neverland will ever find his reputation cleared.
So let us start at the very beginning, as Julie Andrews sang in The Sound of Music, and look at why Depp now finds himself with a tattered reputation on one side of the Atlantic and is trying to remedy that reputation with litigation on the other. What mountains does he have to climb in his American case to achieve his dream of reputation rehabilitation? What streams did he fail to ford under the English system leaving him there as public enemy number one?
City of “Lies”?
The accusations and counterarguments in the alleged factual matrix have been reported upon in all their gory details in column miles, not column inches, in newspapers and across the airwaves, so we do not delve into the mire of them here. However, it is worth a quick summary of what Depp was complaining about as a claimant in England, and what he is complaining about as a plaintiff in America. Note the differing terminology – we are, after all, two countries united by a common language but have separate legal systems and terms. There are also differences and similarities between the U.K. and the U.S. cases.
The article that brought about Depp’s proceedings in England accused him of assaulting his ex-wife. It was published by the tabloid The Sun and its publisher NGN. Depp’s former wife Amber Heard was the newspaper’s star witness. Meanwhile, in Virginia, the article of complaint was penned by Heard for the Washington Post, which has its printing presses in Virginia. Heard is sued personally as the named defendant. In her article she does not name Depp, but refers to a backlash she suffered after speaking out about being the victim of domestic abuse. Depp argues that the accusation was clearly intended to refer to him, and he vehemently denies the accusations – as he did in England – that he was violent toward her.
Libel Tourist?
Why did Depp sue in England? The defendants, The Sun and NGN, are based there, and Depp has a worldwide reputation that he wanted to protect there. Back in the day, celebrities used to flock to London – “A town named Sue” or “The Libel Capital of the World” as it was referred to – to get their “must have” celebrity accessory, the stamp of reputational approval: an English jury verdict. Depp may have been forgiven for thinking that libel litigation in London would be less problematic to clear his name and less traumatic in the bargain. He might have also imagined that it was just the golden ticket to open the door to litigation success in the United States.
Yet times have changed. No longer do English juries hand out “telephone number” damages awards – so-called because the number of zeros in the substantial awards appeared as long as a telephone number. Rather, after a series of cases in the 1990s that prompted the Court of Appeal to raise judicial eyebrows and lower the awards of lower courts,[1] juries could be directed to take account of awards given in personal injury cases. It was considered offensive for the victim suffering from a harmed reputation to be awarded significantly more in damages than a victim suffering bodily harm. Thus, the “ceiling” for damages in defamation cases was tied to the same, much lower ceiling in personal injury cases.
Moreover, while traditionally defamation cases in the English courts were tried with a judge and a jury – sharing out the responsibilities of questions of law and fact respectively – libel juries are now in practice a thing of the past since implementation of the Defamation Act 2013.[2] Removed was defamation’s special category status, and it was flung in with other causes of action, to “be tried without a jury unless the court in its discretion orders” otherwise.[3] Had they thought so before these developments, certainly thereafter claimants would be foolish to rely on any perceived “celebrity effect,” expecting a star struck jury to find in their favor, the evidence perhaps notwithstanding.
I Tried To Go to Reputation Rehab – the English Courts Said No, No, No . . .
In Depp’s case, it is clear that he considered himself libeled, and he vehemently denied the serious accusations leveled at him. Thus besmirched in the jurisdiction of the courts of England and Wales by dint of The Sun being published there, it was not improper for him to seek to bring a successful claim to put the lie to the libel to clear his name. He was entitled to think so, and entitled so to do, and so to sue. Yet while not improper, was it wise?
As we now know, he spectacularly failed. The allegations were not lies according to the English court, which found them to be substantially true, and that gave the newspapers – not just The Sun – carte blanche to label him a wife beater in headline letters.
Intent on seeking to overturn these findings and to remedy his reputation, Depp sought permission of the lower court to appeal the decision. He was refused. He then sought permission of the Court of Appeal itself to overturn the ruling and for the matter to be reheard. Again he was refused, the court applying well-established principles that to persuade the Court of Appeal to interfere with a judge’s findings of fact, the claimant must climb over a very high bar.[4]
Depp’s application was based largely on arguments that new evidence should be considered. That “new evidence” pertained to what his team argued was Heard’s claim that she donated millions obtained in her divorce settlement from him to charity. This was said in court by Depp’s counsel to be a “calculated and manipulative lie.” Heard’s legal team has previously said that she has made donations and will continue to do so until she fulfills her pledge. In response to the application, however, Heard’s lawyers contended that any such new evidence “would not have had any impact” on the result, anyway. It seems that the Court of Appeal agreed, as it refused the application:[5] “The hearing before Nicol J was full and fair, and he gave thorough reasons for his conclusions which have not been shown even arguably to be vitiated by any error of approach or mistake of law.”[6] Lord Justice Underhill refused Depp’s application to admit further evidence in support of his proposed appeal and concluded that the appeal had no real prospect of success and that there was no other compelling reason for it to be heard.[7]
Commenting after the initial judgment, which Depp had called “surreal,” his lawyers labeled it as “flawed” and “as perverse as it is bewildering.”[8] With the double blow of these appeal applications hitting him under his swashbuckling belt, it is perhaps bewildering to many that the erstwhile pirate is pursuing, seemingly undaunted and with a renewed fire in his belly, his separate libel action against his former wife in Virginia.
Should we be surprised that he has done so? As far as the English courts are concerned, and with the now final judgment of the Court of Appeal, time has been called, which leaves the actor’s tattered reputation teetering on the doorstep of the one last chance of remedy, the court in Virginia. Thus, his relentless quest for reputation remedy, and to get his professional life back on track, is understandable.
Depp remains the face of Christian Dior’s perfume Sauvage – the translation for which is, incidentally, “savage.” While he has retained this contract, on a Google search about Depp, headline after headline will appear proclaiming him as a “wife beater” and forecasting that he may never work in Hollywood again. Libel litigation is a lottery, and it was certainly a gamble for Depp to have bet all his reputation chips on a win at the libel court table in England. However, in gambling, there is an argument that by doubling your bet you might recoup your losses, and perhaps this is what Depp is banking on with his next hand. Yet can he win where he has thus far lost?
Libel Law the Other Way Round
While the storyline of Depp’s defamation claims is more or less the same in the two jurisdictions, there are different actors, a slightly different plot and certainly divergences in the backdrop of legal systems and causes of action. Indeed, the two systems appear to reflect a landscape inhabited by one of Depp’s own characters, as he played the Mad Hatter in Tim Burton’s 2016 movie Alice Through the Looking Glass.[9] In the 19th century novel that inspired the film, author Lewis Carroll’s heroine, Alice, marveled at the world on the other side of the mirror, finding that things were “just the same as ours, only things go the other way.”[10] When looking at the libel laws in the U.S., when compared with those that have just defeated him, they do indeed appear to be the other way ’round, and as he continues in his battle in the United States, this differential is not in his favor.
We have noted that libel actions in England are now rarely heard by juries. In the United States, by contrast, li bel juries still perform their function. While they hear the same evidence as legally qualified and forensic judges, juries can be more impressionable and starstruck, thus working to the plaintiff’s advantage. However, it remains to be seen what, if any, impact the screaming “wife beater” headlines from overseas and the widely reported loss will have on an American jury.
Other differences between the two systems militate in favor of the defense. Under English law it is for the claim ant to show that the allegation of complaint was defamatory, and section 1 of the Defamation Act 2013 provides: “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”[11] Thereafter, however, the burden of proof is on the defendant newspaper to prove its defense; for example, that it published an honest opinion (section 3),[12] or published in the reasonable belief that it was in the public interest (section 4),[13] or that the allegations are substantially true (section 2).[14] Thus, The Sun had to reach the high bar of convincing the court that the allegations made by Heard that he was violent towards her were substantially true. It did just that.
In the United States however, it is for the plaintiff to establish that the allegations are false and, moreover, where the plaintiff is a public figure – and there is no doubt that Depp qualifies for this status – he must show that they were published with actual malice. The actual malice standard is that the defendant made the statements knowing that they were false or made with reckless disregard to their falsity.
Thus, on entering the threshold of the Virginia court – if it gets that far – Depp will have the weight of a British verdict against him; plus, a history of evidence already given under oath through which the lawyers will no doubt meticulously pick; plus, a jury who will have read all the gory media reports of the English case and the breakdown of the couple’s relationship. He also bears the responsibility of proving his case on one side of the Atlantic which he has, to all intents and purposes, already lost on the other.
Preclusion – and a SLAPP in the Face
Why say, “if it gets that far”? Heard is using these three little words – comity, preclusion, and “SLAPP” (Strategic Lawsuits About Public Participation) – to ask the court to stop Depp’s Virginia case in its tracks. Claim preclusion – also referred to as res judicata, which is Latin for “a matter decided” – is the principle that “prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them.”[15] There is also issue preclusion, or collateral estoppel, preventing a party from re-litigating an issue once a court has ruled on it. Further, there is comity, the principle of which provides that different courts, states and nations will mutually recognize each other’s judicial acts.
The supplemental plea from Heard’s legal team was filed on April 21st.[16] It records that: “After extensive discovery and motions practice, a trial was held over a three-week period [in England]. On November 2, 2021, in a 129-page, 585 paragraph Opinion, the U.K. High Court found that Depp failed to prevail on his libel claim because the statements were substantially true and that Depp committed domestic violence against Ms. Heard on at least 12 occasions . . .” and that, given the appeals are refused and “the U.K. judgments are now final . . . Depp has fully exhausted his rights to appeal.” They also state that “Depp’s claims in this Court against Ms. Heard are now barred under the doctrines of comity, collateral estoppel, issue and claim preclusion and res judicata.”
There are, as with most things involved with litigation, gaps for argument. The parties in both sets of litigation are not the same: we recall that it was The Sun that defended the case in England – Amber Heard was simply a witness – whereas in Virginia she is the defendant. That said, the concept of privity considers whether the interests of the party against whom preclusion is asserted was represented in the prior litigation. While the former Mrs. Depp was not a party, Depp was, and his interests were certainly represented throughout.
As to the issue of comity, the plea proposes that “the merits of the U.K. judgments should not ‘be tried afresh,’” and that “[u]nder the doctrine of comity, this court should recognize the U.K. judgments giving them ‘full effect’” because they were “rendered on the merits” after much evidence “in a fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings.”[17] All very well, but while Heard may be asking the court to note Depp’s London libel loss, and using comity principles to ensure that the loss is recognized in the U.S. courts, had the boot been on the other foot and had Depp won and asked the Virginia court to recognize a London libel win, we can imagine the outcry. Accepting a foreign judgment that seems to uphold principles of free speech is one thing, but accepting a foreign judgment that appears to go against First Amendment principles would be a very hard pill for a U.S. court to swallow. Indeed, the Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act), which prohibits U.S. courts from enforcing foreign defamation judgements that do not comport with First Amendment protections,[18] would likely have made accepting an English court judgment in favor of a plaintiff impossible. How this apparent double standard will play out remains to be seen.
The argument in the supplemental plea asserts: “Giving full effect to the U.K. judgments necessitates a finding that statements in the op-ed published in the Washington Post are true – Mr. Depp committed domestic violence against Ms. Heard on many occasions, causing her to fear for her life. Therefore, as a matter of law, Depp cannot prevail on any of his claims, and Depp’s complaint against Ms. Heard should be dismissed in its entirety.” Will the court in Virginia consider this new set of arguments to have the case dismissed? Or will it rather admire the bold approach to kick this claim to the curb?
Heard’s team has also offered up another argument to slap down her litigation foe, arguing that the Virginia anti-SLAPP statute[19] applies, given that Heard cannot, in light of the English court findings, be found to have acted with knowledge or reckless disregard as to falsity of what she wrote. The rationale behind anti-SLAPP legislation is that the rich and powerful bring SLAPPs, strategically litigating against those who speak out against them or criticize them to subject their detractors to the pressure and expense of litigation, and thus to silence them. This of course, would be a slap in the face to the free speech-protecting First Amendment, which U.S. law and society holds so dear. Thus, anti-SLAPP legislation is intended to right this perceived wrong, to protect public speech from being sued upon where it amounts to an attempt to intimidate and silence critics.
The Virginia anti-SLAPP legislation provides insulation from legal liability for statements that, albeit defamatory, are of public concern and would otherwise be protected by the First Amendment. However, it does not insulate from legal liability allegedly defamatory statements made with the knowledge of, or reckless disregard for, whether those statements are false. In other words, the Virginia anti-SLAPP legislation cannot be rolled out willy-nilly to stop legal proceedings being brought over defamatory allegations that are just thrown out there without a care as to whether or not they are true or false.
By seeking to rely on Virginia’s anti-SLAPP legislation, and thus avoid legal liability for what she penned, Heard is presumably arguing that her speech should be protected as a matter of public concern protected under the First Amendment and thus is granted immunity from suit. Moreover, as the English court found her similar statements over which Depp sued in England to have been true, they cannot be said to have been published with any reckless disregard for the truth and, therefore, Depp could not rely on any reckless exemption robbing her of the right to use this legislation. What Depp could do, however, is to seek to argue that her accusations about him are matters of private, and not public, concern, and thus are not protected. All remain to be argued before the Virginia court.
Lessons Learned
While we wait for the next chapter of this dispute, let us consider what, if anything, a wannabe litigant can learn from the reputation malfunction suffered by this particular actor in the English court episodes.
Lesson one: We should pause for thought before reaching for the writ (in fact, it is a claim form under modern English legal terminology, but that loses the alliteration, so forgive me for use of the archaic language). While the glittering prize of a British libel victory might have shone like a holy grail at the outset of his English litigation, for Depp that proved as unattainable as the cup of medieval legends. A defamation action won can remedy a reputation; a defamation action lost can ruin a reputation. We saw that only too clearly in an equally high profile but less glamourous case back in 1995, when British conservative Treasury Minister Jeffrey Archer launched libel proceedings against The Guardian newspaper and Granada Television over accusations about his business affairs. His famous soundbite made an altruistic promise to the nation: “If it falls to me to start a fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of fair play, so be it. I am ready for the fight.”
However, his soundbite came back to bite him. Documents admitted into evidence showed elements of his testimony, relevant to his whereabouts at the time in question, to have been untrue. His case collapsed. Archer was charged with perjury and perverting the course of justice. He pled guilty. He served seven months of an 18-month sentence in custody. Archer’s wife left him. He was branded a liar.
Lesson two: We should be careful for what we wish.
Perhaps Depp anticipated a British banner of success, waved gloriously as he entered the Virginia courtroom, head down, would signal the way to victory there too. Rather, however, he experienced detailed and uncomfortable cross-examination accompanied by weeks of sensational reporting and ultimately a decision elevating the original article to huge and horrendous headlines in myriad media across the globe. Hardly the clean bill of health for what he would have wished.
Lesson three: We may need to find different ways to skin the reputational cat. As it currently stands, Depp has been labeled with a very serious allegation. Where a plaintiff considers their reputation and their livelihood ruined as a result of such accusations, it is hardly to be expected that they will necessarily turn the other cheek, especially in an age when what is published anywhere is published everywhere, given the power and the reach of the omnipotent, omnipresent internet. Yet litigation is not always the answer.
Some brands are too big to fail even as a result of seriously damaging publicity, either false and damaging or true but embarrassing. Depp’s former girlfriend, Kate Moss, also, like Depp, lost a number of lucrative contracts as a result of negative publicity. Her “cocaine chic,” it turns out, may not have been just a model trend of skeletal frame and pallid skin. Exposed on the front page of the Daily Mirror seemingly doing cocaine, Moss suffered the slings and arrows of outrageous negative publicity – but she weathered the storm, regrouped, was rehired and rehabilitated. Her heads-down approach ultimately enabled her to keep her head high.
So, what is next for Depp? He is an actor of worldwide renown with an international reputation. However, despite his continued protestations that those allegations are untrue, as a result of the judgment in the English courts, that reputation currently stands as a man who was violent toward his wife. One can shout that from the rooftops, and from the red tops (the British slang name for the tabloid newspapers), until one is blue in the face.
However, were Depp to win his libel action in the U.S., if accusations that he is violent toward women are found by the Virginia court not to be true, what then? He would effectively be libel-proof over that allegation in one jurisdiction but with an antidote administered to the poison in the other: a creature with a hybrid half-sullied, half- cleansed reputation – some fantastic beast for sure.
Mad Hatter
We know the maxim “the definition of madness is doing the same thing over and again, expecting different results.” Depp remains supported by a set of loyal fans, and they and others may believe that it is not madness at all for him to press on with proceedings in Virginia, as it may be the last chance to save his reputation. Others will consider that his brand has taken such a bashing on one side of the Atlantic that by following a libel action lost in the courts of England and Wales with a similar case in the U.S., and expecting a different result, he is embodying his Mad Hatter character after all. Ultimately, the court will decide.[20]
Amber Melville-Brown is a partner and global head of the media and reputation practice at the international law firm Withers worldwide. Amber is a dual-qualified media-specialist and crisis management lawyer, admitted to practice in both the courts of England and Wales, and New York. This article appears in the current issue of the Entertainment, Arts and Sports Law Journal, Volume 32, No. 2 (2021), a publication of the Entertainment, Arts and Sports Law (EASL) Section: WWW.NYSBA.ORG/EASL
[1] Rantzen v. Mirror Group Newspapers, (1993) EWCA Civ 16; John v. MGN Ltd (1995) EWCA Civ 23.
[2] https://www.legislation.gov.uk/ukpga/2013/26/enacted.
[3] https://www.legislation.gov.uk/ukpga/2013/26/section/11/enacted.
[4] See Lord Justice Lewison’s reasoning in Fage UK Ltd v. Chobani UK Ltd (2014) EWCA Civ 5.
[5] (2021) EWCA Civ 423, https://www.judiciary.uk/wp-content/uploads/2021/03/Depp-approved-for-hand-down.pdf.
[6] https://www.judiciary.uk/wp-content/uploads/2021/03/Depp-approved-for-hand-down.pdf .
[7] https://www.judiciary.uk/wp-content/uploads/2021/03/Depp-approved-for-hand-down.pdf .
[8] Johnny Depp Lawyers Says UK Court Ruling “Flawed” and “Perverse,” Reuters, Nov. 2, 2020, https://www.reuters.com/article/idUSKBN27I1FP.
[9] Depp filmography–Alice Through the Looking Glass: https://www.imdb.com/name/nm0000136 .
[10] Lewis Carroll, Through The Looking-Glass and What Alice Found There. Chicago: W.B. Conkey Co., 1900.
[11] https://www.legislation.gov.uk/ukpga/2013/26/section/1/enacted.
[12] https://www.legislation.gov.uk/ukpga/2013/26/section/3/enacted.
[13] https://www.legislation.gov.uk/ukpga/2013/26/section/4/enacted.
[14] https://www.legislation.gov.uk/ukpga/2013/26/section/2/enacted.
[15] Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888 (2002).
[16] https://deadline.com/wp-content/uploads/2021/04/depp-heard-US-dismissal-request-UK-verdict-April-13.pdf.
[17] Hilton v. Guyot, 159 U.S. 113, 202-203 (1895).
[18] Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act), H.R. 2765, 111th Cong. § 3 (2010).
[19] Va. Code Ann. § 8.01-223.2.
[20] If you thought you spotted a few Depp film titles in there, or almost film titles, you did: What’s Eating Gilbert Grape: A Nightmare on Elm Street; Fear and Loathing in Las Vegas; Finding Neverland; Public Enemies; City of Lies; The Tourist; Blow; Alice Through the Looking Glass; Fantastic Beasts.
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