The outcome of the Johnny Depp defamation trial turned a bit of celebrity jurisprudence on its head — the long-standing conventional wisdom that it’s easier for a VIP to prevail with a libel claim in the United Kingdom than in the United States.
The reason, according to legal experts, may simply boil down to the fact that Depp’s action against his ex-wife Amber Heard in the UK — which he lost — happened to be decided by a judge, whereas his case in the United States was decided by a jury.
“The answer is simple,” said George Freeman, executive director of the Media Law Resource Center. “It was up to the jury.”
Depp prevailed in his three counts of defamation against Heard and was awarded $15 million, the seven-person jury announced Wednesday. The jury also decided that Depp, through his lawyer Adam Waldman, defamed Heard on one of three counts in her countersuit. She was awarded $2 million.
Depp sued Heard in Fairfax County, Virginia, in 2019 for defamation over an op-ed published a few months before in The Washington Post. Heard did not name Depp in the article but wrote that she was “a public figure representing domestic abuse.”
In 2020, Depp lost a similar case in the United Kingdom in which he sued the Sun tabloid for calling him a “wife beater.” Libel law has traditionally been more favorable to plaintiffs there, even leading to “libel tourism,” where plaintiffs sue in British courts to advantage their cause.
So it surprised some when Depp prevailed in the US case, given plaintiffs here face a much higher bar for proving libel of a public figure. Under American law, a plaintiff in a libel trial has to prove that they were harmed by an entity acting with actual malice, meaning they knew a libelous statement was untrue when they made it.
Mark Stephens, an international media lawyer familiar with both cases, said Depp’s legal team in the United States ran a strategy known as DARVO — an acronym for deny, attack, and reverse victim and offender — in which Depp became the victim and Heard the abuser.
“We find that DARVO works very well with juries but almost never works with judges, who are trained to look at evidence,” Stephens said.
Although Heard was not named in the British case, she testified over several days as a witness called by the Sun. The British judge ultimately ruled that the allegations against Depp were “substantially true,” writing in a 2020 ruling that “the great majority of alleged assaults . . . have been proved to the civil standard.”
Even though the Virginia case had a much higher standard to cross for Depp’s team, “that didn’t impact the outcome because essentially what you have got is a jury believing evidence that a British judge did not accept, so that’s where the difference lies here. Unusually, not in the different legal frameworks.”
That may explain why Depp lost in the U. even though he was not required to prove the wife beater label was false. Rather, under British law, the publication had to prove that Depp was, in fact, a wife beater.
“If Depp had filed that same case here in the US, he would have the burden of persuading the jury that the accusation was false,” said Lee Berlik, a Virginia-based attorney who specializes in defamation law and business litigation.
The distinction is significant because in cases where there is evidence on both sides and the jury can’t determine which party is telling the truth, the party with the burden of proof loses. “It is remarkable that a judge in the UK found that the Sun had proven 12 separate acts of ‘wife beating’ by Depp, but in Virginia a jury essentially found zero acts of domestic abuse and that Ms. Heard’s claims to the contrary were basically a ‘hoax,’” Berlik added.
Depp sought to have the case heard in Virginia, which has a relatively weak anti-SLAPP statute, rather than in California, where he and Heard both reside. Such statutes provide defendants a quick way to dismiss meritless lawsuits. Heard sought to dismiss Depp’s suit but was unsuccessful.
The other difference between the two cases is the mayhem that took place online outside the courtroom. While the UK case prompted outsize media coverage, the trial in Virginia took it to another level. The trial was live-streamed, with millions tuning in and dissecting the testimony on social media. ‘Saturday Night Live’ even lampooned it.
Although jurors were ordered not to read about the case, they weren’t sequestered.