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.
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 for the aggrieved to seek to resolve the matter by contacting the publisher of the defamatory material. This is an underpinning principle of defamation claims—that is, to promote quick and non-litigious methods of resolving disputes. Hence, we see a substantially different approach to defamation in Australia and why it is common that defamation claims the likes of the Depp v Heard Trial do not rise to this level.
Significance of Depp v Heard for the practice of defamation law in Australia
Although Depp v Heard is the judicial product of a foreign jurisdiction, by virtue of exposure to widespread publicity, it is not unlikely that the Australian public is generally more familiar with, and has a better understanding of, American defamation law (specifically, that of Virginia) than Australian defamation law. Accordingly, this Depp v Heard has practical significance to the practice of Australian defamation law. Legal practitioners should be aware that Depp v Heard will likely (1) inform prospective clients’ understanding and knowledge of defamation law generally; (2) produce misconceptions about the litigation process and the conduct of defamation proceedings in Australia; and (3) produce unrealistic expectations as to the type and amount/quantum of damages capable of award for successful defamation claims in Australia. Specifically, prospective clients may assume that much larger awards for damages are possible than what is legislatively permitted.
The high-profile nature of the Depp v Heard trial has brought the seriousness of defamation publications to the forefront of public awareness. The win for Depp, the aggrieved party, was certainly recognition of the robustness of his legal team’s hard work in convincing a jury to find in favour of their client. Although a major win for public interest in defamation proceedings, practitioners should be aware of the significant impact that Depp v Heard is likely to have on the way in which they manage clients and client expectations in defamation proceedings.
Should you have any questions or be the subject of a defamatory publication/s, we would welcome the ability to discuss and advise where necessary. Salerno Law frequently provides advice to companies and individuals as to social media, defamation, copyright and intellectual property.
By Bernadette McShane & Thomas Malios