More than ever, these days it seems that high-profile defamation cases are knocking loudly at the doors of courthouses worldwide. The ensuing spectacles riveting us to our TV screens are driven by well-known public figures who decided to bare it all on the record: the most intimate details of their lives, their sex habits, their addictions, their formerly private communications, and their scandalous marital difficulties. Millions are getting a front-row seat at the salacious proceedings courtesy of live streaming services.
The resulting soap-opera-like shows revealed to the world give us a window into the lives of the rich and famous and ultimately stand as strong reminders of the lengths some choose to go to in order to have a shot at protecting or restoring one of the most precious things we, human beings, have: our reputations.
To aid in that endeavor, in comes the law of defamation. Simply stated, the tort of defamation requires proof in a court of law of five distinct elements: (i) the making of a verbal (slander) or written (libel) statement of actual fact (as opposed to non-actionable opinion); (ii) which is communicated to a third person (not only to the victim), (iii) which is false, (iv) which subjects the victim to ridicule and harms the victim’s reputation in the community, and finally, (v) which causes monetary damages to the victim, either actual or presumed. “Johnny Depp committed spousal abuse”, “Unworth is a ‘pedo-guy’”, “Jamie Vardy’s wife is a liar and spreader of false rumors about me” – are all examples of potentially defamatory statements. These become actionable in a court of law if they are false, communicated to a third party, and result in damages.
Let’s explore three present-day firebrand defamation cases involving public figures. Johnny Depp v. Amber Heard is a wild legal battle unfolding in Virginia State court. The trial is televised and streamed daily. It has been going on for the better part of one month. Johnny Depp, famed actor and protagonist of many blockbuster movies including Donnie Brasco, Pirates of the Caribbean, the Lone Ranger, Nick of Time and The Rum Diary, is suing Amber, his former wife, for defamation. More specifically, Depp contends that in a 2018 article published by Heard in the Washington Post, she falsely accused him of having committed sexual violence and spousal abuse. Depp claims that this libelous article resulted in the ruination of the actor’s reputation and prestige in the movie industry, as studios do not want to be associated with any abusers, especially in the aftermath of the “Me Too” movement that saw the incarceration of sexual predator heavyweights such as Harvey Weinstein and Jeffrey Epstein.
Depp claims the defamatory article caused him to lose a very lucrative Pirates of the Caribbean 6 gig, as well as other roles. A parade of witnesses already appeared in the Virginia courtroom, either in person or remotely. These included Johnny Depp himself, police officers, Depp’s security guards, agents, managers, attorneys, as well as experts in the movie industry and psychology. All were summoned to discredit Heard’s allegations of abuse.
The public, generally mystified with Depp’s charisma, calmness, and cinematic presence was also treated to morsels of piquant examples of infidelity, drug and alcohol use, allegations of extra-marital affairs involving other celebrities such as Elon Musk and James Franco, as well as same-sex relationships of Amber Heard.
In opening statements, Depp’s lawyers told the jury to expect that Amber Heard, an actress in her own right, would “deliver the performance of her life” before them. After Depp rested his case, Heard began testifying. Her performance has in fact been criticized by many in the media, including by Doctor Lillian Glass, a body language expert, who concluded that Heard’s testimony “seemed contrived, as if she was doing a dramatic scene and was acting over the top. In essence, her bad acting appeared cringeworthy.”
While the trial is not over and ultimately the jury will be the sole decision-maker in the dispute, Johnny Depp has quite a high burden to meet. He is essentially charged with proving a negative: that he did not abuse his wife. Ultimately, the case will turn on Depp’s credibility versus Heard’s. The Judge’s instructions to the jury at the end of the case will give the jurors a roadmap on what they must decide factually. And then, especially in cases dominated by a powerhouse personality, as Depp indisputably is, we must also be cognizant of the jury nullification prospect. This occurs when a trial jury reaches a verdict that is contrary to the letter of the law because the jurors either disagree with the law or believe that the law shouldn’t apply in the case at hand.
Another highly publicized defamation case concluded at the end of 2019 in Elon Musk’s favor. The world’s richest man was sued in a Los Angeles federal district court by Vernon Unsworth for $190 million for calling him a “pedo guy”. Unsworth is a British cave explorer who helped in the rescue of trapped Thai schoolboys from a cave. Musk was able to convince the jury that the phrase “pedo guy” was common in South Africa, where he grew up, that meant nothing beyond “creepy.” As such, in essence, Musk contended that “pedo guy” was never supposed to be a statement of fact, but a mere insult spluttered in the heat of the moment after Unsworth provoked him. The jury bought the defense.
Yet another spicy public-figure legal battle is now coming to a rapid boil in a London courtroom between Rebekah Vardy and Coleen Rooney. Vardy is the wife of a very famous soccer player, Jamie Vardy, a player for Leicester City. She is suing Coleen Rooney, who is married to the even more famous Wayne Rooney, formerly of Manchester United. Vardy claims that Rooney called her a liar and accused her falsely online, in a 2019 social media post, of leaking deliberately false stories about her to The Sun newspaper. Vardy denies the accusations and commenced an action for defamation against Rooney.
Because the core issue is the truth or falsity of whether Vardy leaked the false stories to the press, just like Depp, Vardy is charged with proving a negative – that she did nothing of the kind. While this may well seem to some to fall in the realm of “much to do about nothing”, Vardy claims that as a result of Rooney’s accusations she has received death threats. “I have been told that I should die, that my children should die, my unborn child should die”. Vardy, therefore, saw the courtroom as the only venue in which she could try and restore her, and by extension her family’s, reputation and integrity.
Each defamation case litigated to conclusion will invariably produce a winner and a loser. Yet, the return of an unfavorable verdict or judgment is not always seen as the be-all and end-all of the matter. In certain cases, regardless of the legal win or loss, it is important for the Plaintiff to be able to go on the record publicly and present his or her position clearly, devoid of media spin and nuance. This in itself may well be the targeted, sought-after ultimate “win”.
My twenty-eight years of experience litigating defamation cases in state and federal courts for and against newspapers, public figures, reality show stars, doctors, lawyers, publishers, and many others, teach that those who can afford it will stand up to protect their reputation and integrity, no matter what the cost.
Because social media posting is so prevalent these days, it is more important than ever to be careful before making any false and derogatory statements about others on the internet. Before hitting that “send” key, you may want to ask yourself if the risk merits your momentary posting gratification.
Robert S. Popescu, Esq.