Depp/Heard legal tussle could change view on defamation claims in Australia

The ongoing defamation trial centred on Hollywood actors Johnny Depp and Amber Heard, which is making headlines across the globe, could change the way defamation claims involving US defendants are viewed in Australia.

The case has Depp, who starred in major movie franchises like Pirates of the Caribbean and Fantastic Beasts, suing ex-wife Heard, star of DCEU movie Aquaman, for US$50m in damages over a Washington Post op-ed the latter authored in December 2018. In the piece, Heard claimed that she had been a victim of domestic abuse; while Depp was not directly named, the actor claimed that the implications of the op-ed led to the destruction of his reputation and loss of earnings due to the roles he lost as a result.

In the recently released third outing of the Fantastic Beasts franchise, actor Mads Mikkelsen notably replaced Depp in the major role of Gellert Grindelwald.

The defamation trial recently closed out its second week of proceedings, and after Depp’s attorneys rested his case following 13 days of testimony, Heard’s lawyers made a motion to have the case dismissed. Fairfax County court Judge Penney Azcarate partially shot down the motion, and the hearings are set to continue with Heard’s legal team presenting the actress’ case.

If Depp prevails in this legal bout, plaintiffs in Australia and the UK who are looking to file defamation claims against a US defendant could opt to do so in the US instead.

Media Arts Lawyers senior lawyer and defamation expert Amanda Mason told Australasian Lawyer that Australia has typically been a “destination of choice” for legal proceedings involving defamation, since the country’s defamation laws are notably “plaintiff friendly.”

“However, if a plaintiff is successful in their Australian defamation claim against a US defendant, it can be very difficult to enforce the judgment in the US because the US has laws in place to ensure US First Amendment rights are upheld,” she explained.

Under the First Amendment, which protects freedom of speech and freedom of the press, a plaintiff who is a public figure in the US must hold to an especially high standard of proof.

“In order to succeed in a defamation claim, [plaintiffs who are public figures] will need to establish, with convincing clarity, that the defamatory statement was not only false, but that the defendant knew the statement was false, or acted with reckless disregard as to the truth or the falsity of the statement,” Mason said. “This is a significantly higher standard of proof than in Australia and the UK, which only require the defendant to prove the defamatory statement is substantially true on the balance of probabilities in order to establish a truth-based defence.”

Depp had previously initiated defamation proceedings against News Group Newspapers Ltd and its journalist in the UK after its publication, The Sun, released an article that echoed the allegations in the Post piece. Depp lost that case “as the court held that, on the balance of probabilities, the defamatory imputations were substantially true based on the evidence adduced by the parties in the proceedings,” Mason explained.

“The current proceedings against Heard relate to a completely different publication, but the allegations and, accordingly, the defamatory imputations or statements that arise from them, are similar to those in The Sun’s article,” she said. “This makes it fascinating from a legal perspective as, because Depp’s claim against Heard is being pursued under US defamation laws (which are typically much harder for a plaintiff to succeed under than UK defamation laws), where the subject matter is reasonably similar to his UK claim, it will allow a comparison of a very similar case under the laws of two separate jurisdictions.”

Depp and Heard’s sensational court fight has “has drawn worldwide attention to the nature of defamation proceedings,” which are generally initiated as a last resort when a plaintiff has already attempted other ways of clearing their name, Mason pointed out.

“At the very least, [the case] is likely to influence a plaintiff’s decision to bring defamation proceedings, particularly where the claim involves someone well-known or where it would be likely to attract a lot of media coverage,” she told Australasian Lawyer.

“In order to prove the truth, or the falsity, of the defamatory imputations, the parties will need to adduce evidence to support their arguments and, as has been seen in Depp’s proceedings, that may include private and sensitive personal information that would not otherwise be made public by the parties…Unfortunately, where the subject matter of the proceedings is private and personal, and where the plaintiff and defendant are both well-known public figures, it is inevitable that it will be publicised.”