The recent case between actress Amber Heard and actor Johnny Depp in the US, which only recently concluded, sets the tone for future high-profile libel and defamation cases over the pond.
Having unsuccessfully brought an action against the Sun Newspaper for referring to him as a “wife-beater”, it would have been logical to assume that Johnny’s claim against Amber Heard for libelling him in an Op-ed would follow suit.
However, on 3 June 2022, Johnny achieved victory against Amber, as Ms Heard was ordered by the court to pay damages of £10 million plus an additional £5 million as ‘punitive damages’
Withers Worldwide Partner Amber Melville-Brown referred to the case as ‘reputation rehabilitation’, in that it sought to provide the actor with a semblance of credibility in the wake of the 2020 UK verdict, in which the judge explicitly concluded that on the balance of probability, it appeared that 12 of the 14 incidents detailed by the Sun in their story had happened.
These cases involved different defendants and different circumstances, but it has raised many eyebrows to see a US jury reach a dramatically different conclusion to the UK judge that presided over the original Sun libel case. How has this occurred and what should you take away from this as a UK citizen who doesn’t want to fall foul of libel or defamation rules in the future?
Is the UK stricter than the US?
UK defamation laws aren’t stricter than the US, so the UK case was not successful merely because a lower bar was applied. Indeed, commentators suggested that stronger freedom of speech rules in the US may work against Johnny’s case over there.
The difference in outcome could be explained by the fact that juries can be influenced by several factors including social media. The online furore, particularly on viral video apps such as TikTok, shows an overwhelming body of support for Johnny, who won the popularity and PR battle early on. Jurors are instructed not to read newspapers or look on social media for information about a case, but they are left to their own devices, and it was frankly difficult to avoid commentary about this case as Depp v Heard videos saturated social media during the proceedings.
Depp’s lawyers also successfully used a strategy to undermine the credibility of Heard as a claimant, which can be particularly convincing to a jury but is not always strictly relevant to the question they have been called up to answer. The Guardian reports that during the Sun Newspaper case, the UK judge dismissed several lines of argument put forward by the Depp team under this strategy, whereas in the US case Depp’s lawyers were allowed to play it out.
How to avoid libelling or slandering in the UK
The core defence you can use in court when being accused of libel or slander is to prove that you told the truth. That’s because a key component of the definition of libel or slander is that the statement under scrutiny was false.
Therefore, you can take one simple measure to dramatically reduce the chances of being caught up in a libel case like Amber Heard: when making critical statements orally or in publication, you must ensure that all critical elements are suitably supported by evidence. You should pay particular attention to any criticism that you know will impact the reputation of the target in the mind’s eye of the reader or listener.
Where the evidence does not categorically prove that what you are stating is true, then you should consider not making that statement. Alternatively, you could heavily caveat what you say, emphasising the fact you are expressing an opinion based upon limited evidence (which you should also factually describe). This way, you have structured the statement as the description of factual evidence, and the expression of an opinion drawn upon that evidence, which may or may not be correct.