On 27 and 28 April 2018, The Sun newspaper published an article headlined “How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” and other headlines.
Mr. Depp denied any physical violence act or ever hitting her and that the publication of the articles has caused serious harm to his personal and professional reputation.He also contended that she had been violent towards him.
The Defendants' case was that throughout their relationship Mr. Depp was controlling and verbally and physically abusive towards Ms. Heard, particularly when he was under the influence of alcohol and/or drugs. They relied on 14 alleged incidents of serious physical assault against Ms. Heard, which were said to have taken place between 2013 and 2016 in place including Los Angeles, the Bahamas, Tokyo, Australia, Southeast Asia, and on a flight from Boston to Los Angeles.
In July 2020, a trail was held before Mr. Justice Nicol over 16 days. Mr. Depp and Ms. Heard both gave evidence, as did 18 additional witnesses called by Mr. Depp and 6 additional witnesses called by the Defendants.
Defamation Act, 2013
Section 1 of this act states that
(1) a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
The meaning of the articles complained of.
Whether the imputation conveyed by the articles was substantially true.
Justice Nicol observed that undersection 2(4) of the Defamation Act 2013, truth is defence to a claim for libel. It is for a defendant to prove that the libel was substantially true. The burden of proof therefore rests on the defendant.
It has not been necessary to consider the fairness of the article or the defendants’ ‘malice’ because those are immaterial to the statutory defence of truth.
As for the standard of proof, the starting point is that these are civil proceedings and in civil proceedings, the standard of proof is the balance of probabilities i.e. is it more probable than not that the article was substantially true in the meaning that it bore? In this case, is it more likely than not that the claimant did what the articles alleged? The common law knows only two standards of proof: beyond reasonable doubt which applies in criminal cases and certain other immaterial situations and the balance of probabilities which applies in civil cases.
Justice Nicol found 12 out of 14 alleged incidents of serious physical assault against Ms Heard, which were said to have taken place between 2013 and 2016 in place including Los Angeles, the Bahamas, Tokyo, Australia, south east Asia, and on a flight from Boston to Los Angeles to be proved true.
Thus, the meaning of the articles was as contended for by the Defendants, namely that Mr. Depp beat Ms. Heard causing her to suffer significant injury and on occasion leading to her fearing for her life particularly when he was under the influence of alcohol and/or drugs.’
Justice Nicol concluded that the Claimant has not succeeded in his action for libel. Although he has proved the necessary elements of his cause of action in libel, the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true. So, the claim is dismissed.