The Significance of Depp v Heard for the practice of defamation law in Australia
Introduction As undoubtedly one of the most highly publicised and discussed defamation cases of all time, Johnny Depp’s (‘Depp’) civil defamation action against former wife, Amber Heard (‘Heard’), has significance for the practice of defamation law in Australia. Background In December 2018, Heard wrote an op-ed in the Washington Post which ran under the headline, ‘I spoke up against sexual violence—and faced our culture’s wrath. That has to change’. Although the op-ed made no express mention of Depp, Depp alleged that he was nevertheless sufficiently identified by Heard’s mention that two years prior, she had become a ‘public figure representing domestic abuse’. Accordingly, in March 2019, Depp commenced defamation proceedings against Heard by filing in the Fairfax County Circuit Court, in Virginia, USA. The proceedings were filed in Fairfax County because the Washington Post is a newspaper located in Virginia and the online and physical publications of Heard’s op-ed were also taken to have occurred in Virginia. As such, Depp’s cause of action arose in Virginia, and accordingly, the defamation laws of Virginia applied. The proceedings were heard by a seven-member jury which ultimately found that the allegations made by Heard in her 2018 op-ed were false. The jury found in Depp’s favour on all three of his claims relating to specific statements in the 2018 op-ed. As Depp was also able to satisfy the Court that Heard’s op-ed had been published with malice, Depp’s defamation claim was ultimately successful. Further to this, the jury found that Depp should be awarded $10 million in compensatory damages and $5 million in punitive damages. The judge, however, reduced Depp’s punitive damages award to $350,000 because of a state cap on punitive damages. In the same proceedings, the jury also found in Heard’s favour with respect to her counterclaim that she had been defamed by one of Depp’s lawyers (who had referred to Heard’s allegations as being a hoax). The jury found that Heard should be awarded $2 million. Defamation law in Australia To succeed in a claim for defamation in Australia, several substantive elements must be proved. Specifically, the party alleging that they have been defamed (ie, the plaintiff) must establish that the matter which they complain of has a defamatory meaning. Second, this defamatory material must identify the plaintiff as the target of its defamatory meaning. Third, the defendant must have communicated (published) the defamatory material through a platform (print, media or speech) to at least one (third) party other than the plaintiff. Finally, excepting the Northern Territory and Western Australia, the publication of the defamatory material must have caused, or be likely to cause, serious harm to the reputation of the aggrieved party. Further to this, if it is proven that there is no substance of truth to the defamatory materials and the defendant is unable to avail themselves of any defence or legal excuse for making and circulating the defamatory material, the plaintiff will succeed. With defamation claims in Australia, particularly in Queensland, there is a legislative requirement [...]