Johnny Depp v. His Ex-Wife Amber Heard

Recently, the lawsuit between the famous actor Depp and his ex-wife Heard has been making headlines. Depp sued his ex-wife Heard, claiming her conduct constituted defamation against him. Depp and Heard married in 2015 after dating for many years. However, the marriage lasted only about a year. In 2016, Heard filed for divorce and claimed she had been subjected to violent treatment by Depp. The fuse of the incident goes back to 2018, when Heard published an article in The Washington Post claiming she was a victim of family violence. After the article was published, many speculated it was an implicit reference to Depp as a “wife-beater”. After being labelled as a “perpetrator of family violence”, Depp filed a defamation lawsuit against Heard, seeking USD 50 million in damages. Later, because the UK’s The Sun published an article publicly calling Depp a “wife-beater”, Depp also sued The Sun. That lawsuit ultimately ended with Depp losing. In 2022, this defamation case was heard in Virginia, USA, and once again attracted widespread attention.

In NSW, What Conduct May Constitute Defamation?

In Australia, what conduct constitutes defamation (defamation)? Today, we will focus on the law in New South Wales (NSW). Simply put, defamation refers to conduct where one party publishes, orally or in writing, content that damages another party’s reputation, and the published (publish) content is untrue or without any basis. Common examples of defamation include but are not limited to:

1. One party publishes, via social media (Facebook, WeChat, Twitter, etc.), content about another party that is baseless and damaging to their reputation;

2. One party publishes an article or posts content on a public forum that is untrue or baseless and damaging to another party’s reputation;

3. One party makes oral statements about another party that are untrue or baseless and damaging to their reputation;

Who Can Bring a Claim?

Under the Defamation Act 2005 (NSW),

1. An individual has the right to bring a defamation claim against another party.

2. Certain companies have no cause of action for defamation against them, unless at the time of the publication of the defamatory matter, the company is: (a) one whose objects do not include financial gain for its members, or (b) a company with fewer than 10 employees that is not a related body corporate of another company, and (c) the company is not a local government body or other government or public body.

3. No action can be brought in respect of defamatory conduct concerning a person who is already deceased, or where the person who committed the defamation is already deceased.

If You Have Been Defamed, What Do You Need to Do?

If you wish to sue someone for defamation, you typically need to do the following:

1. Prove that the other party published (orally or in writing) statements concerning you;

2. Identify what the defamatory imputations are;

3. Prove that the publication of the defamatory material about you has caused or is likely to cause serious harm to your reputation. If the defamation concerns a company that is entitled to sue, the company must prove that the statements have caused or are likely to cause serious financial loss to the company.

4. You must first serve the defendant with a concerns notice before commencing proceedings. The notice must be in writing, and must specify where the matter in question can be accessed (such as a webpage), and must inform the defendant of: the defamatory imputations the plaintiff considers are carried by the publication; the serious harm caused or likely to be caused to the plaintiff’s reputation; and, if the plaintiff is a company, the serious financial loss that has been caused or is likely to be caused to the company by the publication.

If You Have Inadvertently Published Statements That Could Be Defamatory, Is There Any Remedy?

If you have published statements that could be defamatory, the law provides the publisher with a mechanism to remedy the error. The publisher may make an offer to the other party (the person defamed) to make amends (make offer to make amends) in relation to the content published or particular defamatory imputations. Of course, the remedy is subject to strict time limits — generally within 28 days of the publisher being given a concerns notice. If the aggrieved party has provided further particulars in response to the notice, the time limit is 14 days from when those further particulars are provided. Furthermore, if the publisher has already served a defence, amendments can no longer be made.

If the plaintiff accepts the “amends”, proceedings cannot continue, and the court may order the publisher to pay the reasonable costs incurred by the defamed person in accepting the offer.

If the plaintiff does not accept the “amends”, the defendant may rely on the following defences:

(1) After receiving the plaintiff’s written notice, the defendant made the offer to amend the publication as soon as was reasonably practicable; and

(2) The publisher is ready and willing to carry out the terms of the offer; and

(3) Having regard to all the circumstances, the offer was reasonable (as determined by the court).

If There Has Been Defamatory Conduct, What Defences Are Available?

Commonly used defences:

1. Defence of justification: If the defendant can prove that the part of the publication that the plaintiff considers to carry defamatory imputations (defamatory imputations) is substantially true (substantially true);

2. Contextual truth (contextual truth): If the defendant can prove that at least one or more of the imputations is substantially true (substantial truth), and it outweighs any untrue defamatory imputations, there may also be a defence.

For example, a publishes a statement on social media saying b:

(1) abuses alcohol;

(2) maliciously evades paying for tickets;

(3) has committed burglary and murder;

b considers that items (1) and (2) defame them. However, (3) is in fact true. In that case, a may argue that because (3) is true, even if items (1) and (2) are baseless and untrue, because the impact of (3) is far greater than (1) and (2), fabricating items (1) and (2) will not cause the plaintiff any further harm to reputation.

3. Qualified privilege (qualified privilege): Simply put, this is a situation where the law allows a publisher (publisher), in particular circumstances, to communicate frankly and without restriction with another person without fear of being held liable for defamation. If plaintiff a believes certain information must be communicated to the recipient b because the information concerns b’s rights or interests, and in communicating that information there is a “disparagement” of c, then if plaintiff a’s conduct is reasonable, a defence may be available.

4. Honest opinion (honest opinion): If the defendant can prove that what was published is purely an opinion rather than a statement of fact, that the opinion relates to a matter of public interest, and that there is a proper basis for the opinion, a defence may be available.

5. Innocent dissemination (innocent dissemination): If the defendant was only a subordinate distributor (subordinate distributor) — that is, not the first or primary distributor, or was acting as an employee or agent of such a distributor — and published the content without knowing that the content was defamatory, and the lack of knowledge was not due to the defendant’s own fault, then a defence is available.

Other defences:

1. Absolute privilege (absolute privilege): If the defamatory matter was published in the course of government departments, judicial bodies, etc. exercising their functions, the publisher has a defence of absolute privilege.

2. Public interest (public interest): If the defendant can prove that the publication of the defamatory matter was made out of consideration for the public interest, and reasonably believed the published matter concerned the public interest, a defence may be available.

3. Public documents (public documents): If the defendant can prove that the defamatory matter published is contained in (a) a public document or a fair copy of a public document, or (b) a fair summary of, or fair extract from, a public document, a defence is available.

4. Fair report of proceedings of public concern (fair report of proceedings of public concern): If the defendant can prove that the defamatory matter is contained in a fair report, copy, summary or extract of proceedings of public concern, such as those of government departments, international organisations, international conferences or judicial bodies, a defence is available;

5. Scientific or academic peer review (scientific or academic peer review): If the matter was published in a scientific or academic journal, relates to a scientific or academic issue, and was independently reviewed by relevant professionals, a defence may be available.

On Damages

Generally, when determining damages, the court will ensure that the amount of damages matches the harm suffered by the plaintiff.

Finally

A person should be responsible for their own words and conduct (whether written or spoken), and before making unfounded factual claims or untrue statements about others, must consider the consequences. If what is published causes significant harm to others, there is a risk of being sued for “defamation”. Likewise, if you find that someone is disparaging you, you can also use the law as a weapon to defend your rights.