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Media Law in the News #1

Summary of Issue:

In 2018, Johnny Depp sued the British newspaper The Sun and the executive editor for the publication, Dan Wootton, for libel regarding an article that referred to him as a “wife-beater”. The original libel case described is relatively basic, but where this situation becomes interesting is how Depp’s ex-wife Amber Heard fits in. Heard was the original accuser of sexual misconduct and Depp has sued her for libel on multiple different occasions in the U.S. All trials are still being heard (and The Sun case was supposed to happen recently but was pushed back due to COVID-19), which has left the entertainment media plenty of room to speculate.

An important part of this situation is the state of Heard’s seeming inconsistency regarding what can and cannot be devolved as public. She has made accusations publicly but refuses to go into details without witness in a private setting. This has cast doubt upon her accusations. Heard’s lawyer has said that the nature of the sexual violence claims should be one of maximum privacy. However, by route of her involvement in the Me Too movement and initialization of the dispute with Depp in a public manner via an opinion piece in the Washington Post in 2018, Heard has seemed to void any reasonable expectation of privacy in the matter.

Legal Questions Raised:

At the base level, this case is about libel, as Depp has sued for against The Sun, its executive editor, and Heard. The formal question regarding these cases is whether the plaintiff’s case for libel is met. The six parts of the plaintiff’s case are summarized as follows:

1. Publication: were the articles seen or heard by a third party?

2. Identification: was the piece concerning Depp of a small enough scope that they may be identified?

3. Defamation: did the piece significantly damage the plaintiff’s reputation?

4. Fault: as Depp is a public figure he must prove actual malice from the defendant. Was there actual malice involved?

5. Falsity: were the essential elements of the story true to the point that people would think differently of Depp?

6. Damages: is there proof of damage to Depp?

The second part of this case is Amber Heard’s public accusations. Heard is likely to look toward the opinion defense as her best bet in this libel case. A formalized question about Heard’s potential libel would read: does Heard’s intentional barrier against the details of her accusation place Depp in an indefensible position (in terms of public opinion) and therefore guarantee defamation, falsity, and damages from the Plaintiff’s case? And: does it restrict her from using the truth clause in the Ollman Test? Lastly: does Heard have an expectation of privacy around the specifics of her sexual misconduct allegations against Depp?

Relevant Doctrine/Precedent:

The relevant doctrine of these cases involves the Plaintiff’s case for libel (as previously laid out as it applies to Depp), the defense for libel, the qualifiers of a limited-purpose public figure, and the expectations of privacy given Heard’s actions.

The defense for libel will be different for each of these cases. The Sun and Wootton will likely rely on either wire-service or neutral reportage. Wire-service is a defense for libel which states that one news agency reporting on a topic which has been reported on by another reputable news agency is not subject for libel by re-reporting the story as long as no additional commentary is made. Neutral reportage states that accusations made by one individual against the other should be allowed under the First Amendment via “free flow of information” reasoning.

Heard is likely to look toward the opinion defense in this case. Whether not an instance of speech is opinion is determined by the Ollman Test. The Ollman Test is as follows:

1. Is the statement verifiable – can the statement be proved either true or false? Opinion is indirectly linked to the falsity/truth element of libel. That is, if a statement cannot be proved true of false, then it may satisfy the legal definition of an expression of opinion.

2. What is the common usage or meaning of the words?

3. What is the journalistic context in which the statement occurs? This element is especially important for the media. It provides added weight for an opinion defense when the material in question appears in a part of a publication (or, e.g., a broadcast or website) traditionally reserved for opinions – for example, the op-ed pages, personal columns, social media or blogs. The statement must be considered within the material take as a whole. The language of an entire opinion column, for example, may signal that a specific statement, standing alone, which would appear to be factual, is actually an expression of opinion.

4. What is the broader social context in which the statement fits? For example, was the statement at issue made within a context or in a place where the expression of opinions is common or expected? Or was it made within a context in which statements are presumed to be statements of fact?

Heard also must contend against whether she may withhold certain information regarding her accusations. Limited-purpose public figures are defined as people who have attained public figure status only within a narrow set of circumstances and voluntarily thrust themselves into the public eye. Heard was already an all-purpose public figure due to her acting career, however, she has also made herself a limited-purpose public figure within the realm of empowering sexual abuse victims by her semi-frequent and voluntary involvement in the matter.

Implied consent in regard to privacy is also prevalent here. While written consent is certainly preferable to implied consent, implied consent is valid in court. An example of implied consent would be answering a journalist’s questions while on private property.

Lastly, actual malice must be proved for Depp to proceed with the libel accusations. Actual malice is defined as knowledge of falsity or reckless disregard for the truth.


Conclusion:

As this situation encompasses multiple cases, the following bulleted list will attempt to answer each of the Plaintiff’s case sections succinctly. The case against the executive editor, Don Wootton will be given the same determination as The Sun.

1. Publication?

a. The Sun: yes.

b. Heard: yes.

2. Identification?

a. The Sun: yes.

b. Heard: more than likely for anyone who knew about the publicized divorce just one year prior.

3. Defamation?

a. The Sun: yes.

b. Heard: yes.

4. Fault?

a. The Sun: more than likely not.

b. Heard: this is something that would require the extra details to be determined absolutely. As the details are currently not being offered to the public, and Depp has essentially been left without a path to true exoneration (possibly hinting at manipulation and intentional vagueness), an assessment that there is actual malice involved would not be unlikely.

5. Falsity?

a. The Sun: yes.

b. Heard: yes.

6. Damages?

a. The Sun: yes.

b. Heard: yes.

By this assessment Depp does not have a potential libel case against The Sun but does have one against Heard. It is worth exploring how these cases could intertwine.

Heard could be protected by the opinion defense as her original article in the Washington Post was an opinion piece which could not be verified as truth on its own due to vagueness and was not mal-affected by common word usage. However, it is her actions outside of the opinion piece that make the statements verifiable by fact (see Ollman Test) and seem to abuse the purpose of the opinion portion of a publication. Additionally, if The Sun were to use wire-service as a defense, that would mean that the Washington Post was deemed a trustworthy publication, and that Depp’s identity was easily discerned from the article alone. This would solidify the Identification section of the Plaintiff’s case for libel directly, but also add evidence to every other section except Fault. This would also reduce Heard’s potential to use defense of opinion effectively, as this would further suggest that the comments made are verifiable by fact. To clarify, this is only if The Sun used wire-defense. If they used neutral reportage as a defense based on Heard’s public accusations (which is likely the better option as they undoubtedly added commentary given the nature of the newspaper) the previous extrapolation would not apply.

At this point, it does not seem reasonable for Heard to continue to prevent the release of the details of her accusation. If details are not available, Depp cannot truly defend himself in the public eye other than to simply deny the allegations. Therefore, defamation, falsity, and likely damages are guaranteed with the Plaintiff’s Case. Additionally, Heard cannot use the truth clause in the Ollman Test because there is not enough information to be verified (judging by the opinion piece alone). Also, she cannot successfully argue that the pressure for her to share details of the accusation (or legally being forced to share the details) is any form of invasion of privacy (likely via intrusion) because she herself seemed to imply consent to a full understanding of the accusation by making it public. She created herself into a limited-purpose public figure in this field when she wrote the opinion piece in the Washington Post and therefore, hiding the details does appear less-than-genuine at best.

The only remaining difficult part of this case is whether Depp can prove that Heard acted with actual malice. Without the details of the alleged abuse, it is difficult to take her words at face value. While I do sympathize that it is likely extremely difficult to share those details publicly, I believe that a judgement of actual malice would not be unreasonable for previously mentioned reasons. As it stands, it appears as if Heard is attempting to defame Depp. Considering that Heard’s defense via opinion would be relatively weak when placed alongside her other public actions, and that the other potential defenses of libel do not have much prima facie strength in this case, Depp would likely win a libel case against Heard if he could prove actual malice in the Plaintiff’s Case.

This case made me appreciate how tricky public accusations of sexual (or otherwise) misconduct can be. Needless to say, I want to believe that Heard is telling the truth, but when approached legally with the facts publicly available, it is difficult to continue with that desire. Additionally, if Heard is in fact lying, the Plaintiff’s case for libel seems almost too difficult to get through; I cannot imagine how difficult that would be for Depp emotionally if he is innocent.

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