Throughout the summer of 2020, Johnny Depp’s defamation claim for libel against News Group Newspapers Ltd (The Sun) was hitting the headlines. The case ended with judgement being given on 2 November 2020.
The High Court libel trial:
Depp brought a libel claim against News Group Newspapers and The Sun’s executive editor, Dan Wotton, over an article published on the website on 27 April 2018 with the headline, “GONE POTTY How Can J K Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?”. The Headline was amended the next day (28 April 2018) to include, “after assault claim?” at the end of the original title. The hard copy of the The Sun which included an article under the amended title was released the same day.
The News Groups primary witness was Depp’s ex-wife, Amber Heard, who made the allegations of domestic violence. Depp claimed the article was defamatory as it was false and fictitious and had caused his reputation ‘serious harm’ under the Defamation Act 2013. The News Group used the defence of truth under Section 2 Defamation Act 2013, claiming it had evidence of domestic violence, with Heard being their key witness.
Section 2(1) of the Defamation Act states that, “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”. So, minor inaccuracies will not prevent this defence applying if it is substantially true. In other words, every word does not literally need to be true if it is broadly accurate. If a defendant proves the statement is “substantially true”, it will apply no matter how damaging it is to the claimants’ reputation.
The News Group used 14 incidents of alleged assaults in order to prove their defence.
In judgement Mr Justice Nicol said, “I have found that the great majority of alleged assaults of Ms Heard by Mr Depp have been proved to the civil standard”. “The exceptions are Incidents 6, 11”. So, it was held that 12 out of the 14 incidents were proved to be “substantially true” to the civil standard.
The civil standard of proof is “on the balance of probabilities” which basically means anything proved over 50% is a win. In contrast the criminal standard is “beyond reasonable doubt” which is a much higher standard.
Johnny Depp failed in his action for libel. Mr Justice Nicol said, “the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true”. He also said, “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”.
High Court permission to appeal:
The judge who dismissed Johnny Depp’s libel case refused Depp permission to appeal against the High Court ruling.
Mr Justice Nicol said that an appeal did not have a “reasonable prospect of success”. However, Mr Depp had until the 7 December 2020 to apply directly to the Court of Appeal.
Court of Appeal permission to appeal:
Johnny Depp sought the Court of Appeals permission to appeal against his High Court ruling with the aim of overturning the outcome and a retrial being ordered.
Depp’s lawyers wanted the Court to consider fresh evidence relating to Ms Heard’s claim that she gave her £5.5 million divorce settlement to charity. Andrew Caldecott QC (Depp’s barrister) said the claim was a “calculated and manipulated lie”.
Ms Heard claimed she split the entire divorce settlement between the American Civil Liberties Union (ACLU) and the Children’s Hospital Los Angeles.
The Court of Appeal was told that she had only donated £72,000 to the Children’s Hospital and £322,000 to the ACLU. However, Ms Heard claimed she made a further donation of £358,000 anonymously to the ACLU.
Adam Wolanski QC (News Group Newspapers barrister) told the court the new evidence Depp wants to rely on “would not have had any impact” on the result of the trial.
The Court of Appeal refused Johnny Depp permission to appeal.
Lord Justice Underhill said, “we refuse Mr Depp’s application to admit further evidence in support of his proposed appeal and we conclude that the appeal has no real prospect of success and that there is no other compelling reason for it to be heard”. “We accordingly refuse permission to appeal”.