Johnny Depp at the Royal Courts of Justice in London

On 2 November 2020, Johnny Depp lost his defamation action against News Group Newspapers, the publishers of The Sun, which had called him a ‘wife-beater’ in a 2018 article.

News Group was able to show that it’s claim that Depp had assaulted his former wife Amber Heard was substantially accurate on the balance of probabilities.

What is defamation?

In broad terms, defamation is an attack on a person’s reputation. The Oxford English Dictionary defines defamation as: 

  1. The bringing of dishonour upon someone; disgrace, shame.
  2. LAW the offence of bringing a person into undeserved disrepute by making false statements (whether written or spoken); libel, slander.

Libel and Slander

Defamation comprises two torts, libel and slander.

Libel is a defamatory statement of a permanent character. An article or a caricature in a newspaper for example, may constitute a libel.

Slander, on the other hand, is a spoken statement of a defamatory nature.

A statement is defamatory if it causes an ordinary, reasonable person to:

(a)          think less well of the targeted person (T); or
(b)          think that T lacked the ability to do their job effectively and efficiently; or
(c)           shun and avoid T; or
(d)          treat T as a figure of fun or an object of ridicule.

The Defamation Act 2013 (DA 2013), which was enacted to ensure there was a fair balance between freedom of expression and protection of reputation, introduced a requirement that claimants show that they had suffered serious harm before suing for defamation. 

Defences

The DA 2013 also brought in some changes to defences available to defendants in defamation actions. The defences are as follows:

(a)          consent; T can’t complain about the publication of a defamatory statement if they consented to publication in the first place.
(b)          honest opinion (formerly ‘fair comment’); this defence protects people expressing their honestly-held opinions.
(c)           absolute privilege; statements made in Parliament or in the course of judicial proceedings are, generally speaking, not subject to claims of defamation.
(d)          truth (formerly ‘justification’); a statement is not defamatory if it can be shown to be true. This is the defence employed successfully by News Group Newspapers against Johnny Depp.
(e)          Responsible publication on a matter of public interest.

Jury trial

Before DA 2013, there was a presumption in favour of jury trials in defamation cases. This has now been reversed, the reasons being to save money and achieve speedier resolutions. There have been no defamation trials with juries since the DA 2013 came into force.

Comment

There is an equitable maxim in English law which says that a person ‘who comes into equity must come with clean hands’. Or, in the words of A.P.Herbert’s fictional Judge Mildew, ‘a dirty dog will not have justice by the court’.

Mr Depp is already being deserted by the Hollywood studios. Perhaps he should have let sleeping ‘dirty dogs’ lie.

Legal Language

1. Libel

a) Etymology: the origin is Old French and before that from the Latin libellus, the diminutive of liber, meaning ‘book’.
b) Pronunciation: /laɪbəl/ (lie – buhl).
c) Adjective: libellous (British English); libelous (American English).
d) Past and Past Participle: libelled (British English); libeled (American English).

2. Slander

a) Etymology: from Anglo-Norman esclaundre and escandle, meaning ‘scandal’. The        word is aphetic, meaning that an initial, usually unstressed vowel is lost. Other      examples: spy (espy), lone (alone), ‘cause (because) fess (confess).
b) Pronunciation: /slɑ:ndə/ (slarn – duh) (British English); /slændər/ (s – land – er)
American English.
c) Adjective: slanderous.
d) Past and Past Participle: slandered.

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