Judge, jury and social media trial — Why Johnny Depp lost libel suit in UK but won in US 

New Delhi: Last week, a jury ruled against ‘Aquaman’ actor Amber Heard in a defamation suit brought on by ‘Pirates of the Caribbean’ star Johnny Depp for an Op-ed article she wrote in The Washington Post about domestic abuse.

The jury hearing John C Depp, II, v. Amber Laura Heard — a case that kept the United States enthralled for weeks — in the Circuit Court of Fairfax County found that 36-year-old Heard had defamed 58-year-old Depp when she described herself as a “public figure representing domestic abuse”. 

However, the jury also found that one of Depp’s lawyers had defamed Heard and awarded her $2 million in compensatory damages — a difference, in effect, of over 8 million dollars. The trial caused a social media hysteria and was televised, resulting in an overwhelming support for Depp and public mocking of Heard.  

The outcome of this case was vastly different from a libel case that Depp brought, and lost, against British tabloid The Sun for having called him a “wife-beater” in one of its articles in 2020 — less than two years ago. 

Unlike the trial in the US — the case was heard, and decided, by a single judge. 

ThePrint explains what makes the trials in the two cases, and their outcomes, so different. 

Also Read: Johnny Depp-Amber Heard verdict redefines victimhood that’s relevant to the post-truth era

Restraining order and marital settlement

Depp, then 46, reportedly met the then 23-year-old Heard while shooting for the film ‘The Rum Diary’ in 2009. Court documents show the two began living together around 2012 and married in January 2015.

They separated 15 months later and Heard filed for divorce on 23 May 2016. The divorce proceedings turned into a media spectacle after Heard walked into a California state court on 27 May 2016 with bruises on her face seeking a restraining order against Depp and an order requiring Depp to attend 52 weeks of anger management courses. She told the court that she was scared Depp would return to “terrorize [her], physically and emotionally”, and that there had been previous domestic violence incidents, “including a severe one in December 2015 when she feared her life was in danger”. 

She obtained a temporary restraining order against Depp. 

This temporary order was issued while Depp was not present or represented at the hearing but dates were fixed for Depp to be able to present his side. However, that hearing never took place because the couple reached an agreement on 16 August 2016. One of the terms of this ‘marital settlement agreement’ was that the restraining order proceedings would be ‘dismissed with prejudice’ – which means that the case is settled once and for all, and couldn’t be brought back to court. 

Since Depp and Heard did not have a pre- or post-nuptial agreement for division of their finances in case of a divorce, Depp paid Heard $7 million, which she pledged to charity, as a part of their divorce settlement.

‘Culture’s wrath’

However, trouble began again when Depp sued Heard for libel in March 2019 for $50m over an article she wrote for the Washington Post. 

In her 2018 opinion piece ‘I spoke up against sexual violence – and faced our culture’s wrath. That has to change’, Heard didn’t name Depp but wrote she was a “public figure representing domestic abuse”. 

In response to Depp’s lawsuit, Heard counter-sued for $100m. Although both Depp and Heard live in California, the case was heard in the Virginia county in which the Washington Post operates its printing presses. 

Amid screams and chants of “Johnny, Johnny, Johnny” outside the court, the seven-member jury ruled in Depp’s favor on three counts.  Depp had taken objection to the headline of the Op-ed, the line in which Heard referred to herself as a “public figure representing domestic abuse”, and the line which said that Heard “had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse”.

The jurors had to answer a series of questions in ‘Yes’ or ‘No’ — one of those being whether they felt Depp had proved that Heard acted with actual malice. 

Actual malice is the threshold required to prove defamation — especially when it involves a public figure. It requires a person to prove that defamatory statements were made with knowledge that they were false, or with reckless disregard of the truth. The jury answered ‘Yes’ to all these questions. 

It, however, found that Depp, through his lawyer Adam Waldman, defamed Heard in one of three statements that called her accusations a “hoax”.

Also Read: Virtual reality could become a big part of attempts to stop domestic violence

‘The monster side’ of Depp

Depp took exception to a story published in The Sun over his movie ‘Fantastic Beasts: The Crimes of Grindelwald’ in 2018.  The article titled ‘GONE POTTY How Can J.K. Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?’ questions Depp’s casting in the movie despite the domestic abuse allegations against him. This headline was changed to ‘GONE POTTY How Can J K Rowling be “genuinely happy” casting Johnny Depp in the new Fantastic Beasts film after assault claim?’ a day later.

Depp sued The Sun for libel in June 2018.

However, Justice Andrew Nicol of the High Court (Queen’s Bench Division) found in November 2020 that The Sun had proved “what they published…was substantially true”. The judge considered fourteen such incidents of domestic abuse in detail and  found the allegations “proved to the civil standard” in at least twelve of these incidents. The judge said that he “found that the great majority of alleged assaults of Ms Heard by Mr Depp have been proved to the civil standard”. 

He also accepted Heard’s evidence that the allegations she made against Depp “have had a negative effect on her career as an actor and activist”, and accepted that such instances of assault put Heard “in fear of her life”. The judge even accepted certain instances to be “symptomatic of Mr Depp’s manner when ‘the monster’ side of his personality was dominant”.

Before the UK judge, a recurring theme in Depp’s evidence was that Heard had constructed emails and text messages as a ‘hoax’ and that she had built up a “dossier” to be used as an “insurance policy” in case the marriage broke down but the judge rejected the claims.

He also rejected Heard’s “characterisation” as a “gold-digger” saying that “her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger”.

Why Depp lost in UK but won in US

Depp lost the case in the UK despite the fact that the defamation law in there is generally believed to be plaintiff-friendly, even leading to allegations of libel-tourism — a trend where people bring a libel claim in a country they are most likely to win. Additionally, the UK doesn’t have the same levels of free speech protections as in the US.

The difference between the laws in the two countries is that in the US, the burden of proof lies on the person filing the defamation claim but in the UK, it lies with the defendant, making it harder.

In Depp’s case in the UK, the burden of proof lay with The Sun, but in the US, it was Depp who had to persuade the jury that Heard not only defamed him, but did so with malice. In other words, in the UK, plaintiffs have to show that a false and defamatory statement was made, but in the US they also have to prove an added element of actual malice.

But what really turned the tide in Depp’s favour in the US was the jury as opposed to a single judge in the UK. Experts have highlighted how Depp used a strategy called “deny, attack, and reverse victim and offender” or “Darvo” —  a common defence tactic in sexual assault and domestic violence trials. 

The strategy, experts say, is  “very, very effective against juries” although “lawyers and judges tend not to fall for it” because they are trained to look at evidence.

In this case, Depp’s lawyers employed the tactic effectively, turning him into the victim and Heard the abuser.

The same strategy that was employed in social media as well — the hashtag #justiceforjohnnydepp received 19 billion views on TikTok and trended for weeks on Twitter. It resulted in drawing public attention to the trial — polls reportedly showed that Americans showed more interest in the courtroom drama than the ongoing war in Ukraine or the historic ruling on abortion expected any day from the US Supreme Court. 

Although jurors were instructed not to read about the case online, they were not sequestered or isolated, and were allowed to keep their phones.

(This story has been updated.)

(Edited by Uttara Ramaswamy)

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