The Depp v Heard defamation case: What does it tell us about the differences between UK and US law?

The Virginia verdict – Depp v Heard

On 1 June 2022, Johnny Depp won his defamation case in the Fairfax County Court, Virginia, USA in relation to three statements made in an opinion piece in The Washington Post which, by her own admission during the trial, his ex-wife Amber Heard had written about him.

After six weeks of trial, a jury of seven people unanimously found, after approximately 13 hours of deliberation, that in accordance with Virginia law, by a greater weight of the evidence, all the elements of defamation had been met in relation to all three statements[1] and that Mr Depp had proven, by clear and convincing evidence, that Ms Heard acted with actual malice in making or publishing these defamatory statements about him.

The jury awarded Mr Depp compensatory damages of US$10 million, as well as punitive damages.

The jury also found that two out of three of the statements comprising Ms Heard’s counterclaims did not meet these criteria and were therefore not defamatory. She was awarded US$2 million in compensatory damages but no punitive damages.

Inconsistent rulings

Many commentators have pointed to the fact that the verdict of 1 June 2022 in favour of Mr Depp in the United States is at odds with the High Court judgment dated 2 November 2020 in England, in which Mr Justice Nicol found against Mr Depp in his defamation case against News Group Newspapers Ltd (“NGN”) and Dan Wootton, respectively the owners of The Sun newspaper and the author of an article published in The Sun which contained similar imputations regarding physical abuse, although not relating to sexual violence.

In this article, litigation solicitor Lisette Aguilar revisits the English judgment and process, in the context of the applicable defamation law, in order to clarify some of the key differences.

Judge v jury

English defamation law is now primarily enshrined in the Defamation Act 2013 (the “Act”) which reversed the presumption that defamation cases be tried by jury. Hence, unlike the jury trial in Virginia, Depp v NGN and Wootton was heard by a single judge. Parties can apply for a jury trial but the chances of an English court ordering this appear to be slim: most recently, the actor Laurence Fox tried and failed to have his libel case (in which he is a defendant) heard by a jury.

Burden of proof

Since 1 January 2014 (when the Act came into force), one of the defences to an action for defamation is that of “truth”: in relying on this defence, as NGN did, the burden was on them to prove, on the balance of probabilities, that the statement complained of was “substantially true”. Therefore, NGN had to convince the judge that on the evidence presented to him, it was more likely than not that the article in The Sun was substantially true, taking into account also the seriousness of the allegations. In order to do this, NGN called Ms Heard as a witness, among others. Ms Heard was not a party to the English proceedings.

In the Virginia case, the burden was on Mr Depp (and Ms Heard as counter-claimant) to prove by a preponderance of the evidence that the elements of defamation had been met and actual malice “by clear and convincing evidence”. This additional element of malice was due to the celebrity status of the parties involved.

The “balance of probabilities” and “preponderance of the evidence” are equivalent standards of proof (effectively a greater than 50% chance). “Clear and convincing evidence” is a higher standard. However, if criminal charges had been brought, the requisite standard of proof would have been much higher, namely “beyond reasonable doubt”. No criminal charges have ever been brought in relation to the issues in either case.

Consequently, in Virginia, the plaintiff had to prove the statements were false and defamatory in the first place, as well as malicious intent, whereas in the English case, the defendant had to prove that the statements were not defamatory, relying on their defence of truth. 

Oral v written testimony

One of the reasons that the English courts may favour a trial without a jury in a defamation case, as indicated by Mr Justice Warby in Tim Yeo MP v Times Newspapers [2014] EWHC 2853 (QB), is that jury trials can take longer, and thus be more expensive, partly because “the evidence in chief will be led orally” (in the case of a jury trial). This is potentially a significant factor in the difference between the Virginia verdict and the English ruling, but what does it mean?

In essence, each party or witness has the chance to tell their side of the story to the court and this can be done in the form of an oral “direct examination” by their own counsel who asks open questions to elicit their account of what took place. The witness has more freedom to answer as they wish and this testimony comprises their “evidence in chief”. This is in contrast to cross-examination where the witness is questioned or challenged by the other party’s counsel through closed questions (intended to elicit a “yes” or “no” answer).

However, in most English civil cases, including defamation cases before a judge, the evidence in chief is usually given by way of a written witness statement, with papers provided to the judge for pre-trial reading, so there is no direct examination of the witness in court. By contrast, in the Virginia case, Mr Depp’s direct examination was conducted over two days and Ms Heard’s direct examination lasted three days.

Seeing and hearing the direct examination in person in court was arguably more compelling for the jury who could also compare the witnesses’ demeanour and responses during the more adversarial cross-examination. The jury had longer exposure to the witnesses in court and time to assess their credibility. In total, Mr Depp and Ms Heard each took to the stand for almost a week, including re-appearing to rebut each other’s testimony. The trial as a whole lasted 6 weeks in Virginia, whereas in the High Court evidence was heard over 14 days with two days of closing submissions.

A reasoned judgment

Mr Justice Warby also pointed out (as a reason for denying a jury trial) that a judge would provide a reasoned judgment in a defamation case, whereas a jury would not publish reasons for their decision.

“A reasoned judgment, giving the judge’s conclusions and his detailed reasons for reaching them, would by contrast settle, one would hope once and for all, whether or not the plaintiff had misconducted himself in each and every one of the ways charged.”

Some of the reasons Mr Justice Nicol gave in his 129-page judgment can now be considered in light of the Virginia verdict.

Evidence under oath v contemporaneous evidence taken at the time of the event

The jury in Virginia considered much of the same evidence as Mr Justice Nicol. This evidence included hours of contemporaneous audio recordings of conversations between Mr Depp and Ms Heard. In some of these recordings, Ms Heard admitted to her own physical violence against Mr Depp. However, Mr Justice Nicol in his judgment did not regard these admissions as particularly significant, despite being recorded at the time of the conversations (although he did give weight to texts sent shortly after specific incidents). Instead, he placed far greater emphasis on the evidence Ms Heard gave under oath:

“In my view no great weight is to be put on these alleged admissions by Ms Heard to aggressive violent behaviour. It is trite to say, but nonetheless true, that these conversations are quite different to evidence in court. A witness giving evidence in court does so under an oath or affirmation to tell the truth, the whole truth and nothing but the truth. Questioning can be controlled by the judge. Questions which are unclear can be re-phrased. If a question is not answered, it can be pressed (subject to the court’s control) and if still unanswered may be the proper object of comment. None of these features applied to these conversations which, in any event, according to Ms Heard had a purpose or purposes different from simply conveying truthful information” (paragraph 175).

Mr Justice Nicol obviously did not believe that Ms Heard would or did lie under oath. The jury of seven men and women in Virginia clearly came to quite the opposite conclusion, having seen both Mr Depp and Ms Heard directly examined and cross-examined twice, with many questions put to them and controlled by Judge Penney Azcarate and having also listened to the audio recordings.

Donation v pledge

Mr Justice Nicol also rejected the notion that Ms Heard, among other things, recorded conversations with Mr Depp by way of an “insurance policy” in case their marriage broke down (the suggestion being that she could then use this as leverage in a divorce). He noted Ms Heard’s evidence that she had donated her US$7 million divorce settlement to charity and remarked that this was “hardly the act one would expect of a gold-digger” (paragraph 557).

However, Ms Heard subsequently conceded on cross-examination in Virginia that she had not in fact paid this amount to the two charities in question, although she said she regarded “donated” and “pledged” as synonymous. This information had not yet come out at the time of the High Court trial, so Mr Justice Nicol could not have been made aware of it.

Additional witness evidence

In both cases, a range of witnesses were called by both sides, some of whom overlapped, but in Virginia, unlike in the High Court, expert witnesses were also called such as doctors, forensic psychologists, accountants, meta-data experts (in relation to whether photographs had been doctored) and even an expert called by Ms Heard’s team to give their opinion on social media trends in relation to Ms Heard and Mr Depp respectively.

Ms Heard herself paved the way for a new factual witness, Kate Moss, ex-girlfriend of Mr Depp, by referencing in her testimony a rumour she said she had heard about Ms Moss to justify why Ms Heard had punched Mr Depp during an altercation on the stairs. Ms Moss testified in Virginia by video-link from Gloucestershire and promptly quashed the rumour.

Televised trial

English court cases are not televised, whereas in Virginia the proceedings were broadcast live every day. Whilst this should not in itself have influenced the jury, who were instructed each day not to do any outside research or talk to anyone about the case, it did mean that millions of ordinary people were able to see and hear what the jury saw and heard, allowing them to form their own conclusions.

Moreover, certain new witnesses, who did not feature in the High Court case in England, came forward as a result of the televised trial, either because they had seen the US testimony which had been livestreamed, or were in some way made aware of it by other people who had.

One of these was the manager of the Hicksville Trailer Palace, Morgan Night, who corroborated Mr Depp’s account of what occurred there in late May 2013 when Mr Depp and Ms Heard visited. Mr Justice Nicol had in his judgment accepted Ms Heard’s account about this Hicksville incident and that of her friend Kristina Sexton.

Another new witness was a former employee of the entertainment site TMZ, Morgan Tremaine, who contacted Mr Depp’s lawyer Camille Vasquez, after seeing, as he put it, “a discrepancy” between a video taken by Ms Heard of Mr Depp which had been shown to the jury, and the video which he had received, he said, directly from the copyright holder. Mr Tremaine’s evidence went to the issue of whether Ms Heard was seeking falsely to position herself as an abuse victim. Ms Heard’s lawyer, Elaine Bredehoft, put it to him that in view of the cameras in court, Mr Tremaine was simply seeking his “fifteen minutes of fame”, an accusation which Mr Tremaine squarely rejected and batted back to Ms Bredehoft.

Conclusion

Since the jury do not give reasons for their verdict, we may not know for certain why they reached a different conclusion to Mr Justice Nicol, unless any of the jury members gives an interview to explain why, as they in fact are allowed to do in the US. Nevertheless, the differences between the cases highlighted above may give some insight.

[1] namely, the statements:

• had been made or published by Ms Heard
• were about Mr Depp
• were false
• had a defamatory implication about Mr Depp which
• was designed and intended by Ms Heard and
• conveyed a defamatory implication to someone who saw it other than Mr Depp