Tag: defamation

The Sun proves ‘truth’ in Johnny Depp libel trial

Judgment has been handed down in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB), perhaps better known as the Johnny Depp libel trial.

Johnny Depp brought a claim for libel against the Sun newspaper, after it published a headline reading ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?’ The headline was later amended to reference an “assault claim.” The article referenced the allegations made about Depp being violent to his partner Amber Heard.

Those allegations might have been so much chip wrapping had Depp not pursued a claim through the courts. To succeed in a libel claim a claimant must show that the words complained of, in their ‘ordinary meaning,’ had caused serious harm to their reputation. If so, the defendant is guilty of libel unless they have a defence.

One of those defences is to show that what was said was true. To succeed in this defence there is no need to show that each and every allegation is true – just that they are “substantially true.” It is a risky defence to run, because to run it and lose risks increased damages, to reflect the harm and distress done by airing the issues through a trial.

The ‘ordinary meaning’ of the Sun’s article was said to be that

“The Claimant was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which the Claimant was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing restraining order; and for that reason is not fit to work in the film industry.”

Needless to say, if untrue, such an accusation would indeed be libellous.

The trial therefore meant a hearing of all of the evidence about abuse. The allegations were for the defence – the Sun – to prove, not for Depp to disprove, but on the civil standard of proof (“the balance of probabilities”) and not the criminal standard (“beyond reasonable doubt”). The judge was therefore concerned with whether, having heard the evidence, it was more likely than not that Depp was guilty of serious domestic violence against Amber Heard.

The examination of the allegations is conducted in careful detail in the judgment. The judge concluded that of the fourteen separate incidents alleged, twelve were proved, and so the defence of truth was successful. There had been no libel and Depp’s claim failed.

Not only did his claim fail, but the evidence does not show him in a particularly good light: ‘joking’ about being violent to women in prostitution, admitting violence to Ms Heard in messages, blaming his behaviour on a persona he called the Monster, and a chronic drink and drugs problem – all evidence which would not otherwise have been public.

It remains to be seen as to what effect, if any, this will have on Depp’s career. Certainly his fan base are firmly of the view that the judge is wrong, some in more base terms than others. What is certain is that Ms Heard’s career has already been badly affected: she has been the subject of online abuse, petitions to have her removed from her work, characterised in court as a gold digger, and publicly and in the glare of publicity described by Depp as an “overused flappy fish market” and “waste of a cum guzzler” in a rant in which he promised her “total global humiliation.”

The sad fact is that vindication in the courts cannot retrospectively protect Ms Heard from that humiliation already visited upon her. This is a persistent problem for women who report abuse by powerful men.

“Cancel culture” – how should an organisation respond to a baying mob?

Image result for pitchfork mob

The scenario is now familiar: your organisation’s social media team is tagged into a Tweet that looks something like this –

Hey @yourorganisation, what do you think of your [employee / supplier’s] comments about [racism, feminism, social distancing, other wrongthink]?  Is @yourorganisation [racist, transphobic, NHS-hating] or will you [sack/cancel/condemn] your employee/supplier by the end of the day?

It is tempting for an organisation in this situation to hastily distance itself from the “offensive” statement and its maker (called the “Individual” in this article) in an attempt to call off the mob and protect the organisation’s brand.  Responses have ranged from terminating contracts[1], sacking Individuals[2] and explicitly or implicitly condemning Individuals[3].  But haste can lead to misjudgements, potentially resulting in an embarrassing climb-down or even legal action[4].  That makes choosing the right response to a “cancel call” important , particularly as the range of subjects which can trigger an outcry has expanded to include areas where nuanced disagreement is not only justified but also essential. To help organisations to keep their heads when all around them are losing theirs, we suggest a response protocol.  As ever, this article should not be considered legal advice – the needs of every organisation will vary.

  • Have a clear escalation policy.  It is too easy for a junior member of the weekend shift to be panicked into a crowd-pleasing response from which the organisation might have to embarrassingly row back.  The escalation policy should put a moratorium on any public statement being made by the organisation until staff with appropriate seniority (which may be the CEO or Chairwoman) have been consulted.
  • Remember that any public response must take account of legal responsibilities, for example under employment law or the Equality Act.  It must also avoid anything which is likely to be defamatory or any person or organisation. This is a very complicated area of law but as a starting point, if you write something which refers to a living individual and would tend to lower their reputation in the eyes of a reasonable reader, give strong consideration to alternative wording. However, the legal niceties of when something is and is not likely to be libellous (in the sense that it would give rise to a viable legal claim) are extremely complex and beyond the scope of this article. If you are in any doubt, it is worth seeking some professional advice before you respond. 
  • Put in place a draft holding statement like the one below.  This can be quickly adapted for publication once the escalation policy has been followed:
[Organisation] notes the allegations/complaints being made about [Name].  [Organisation] takes its values very seriously and these values include fair treatment of its [customers/employees/agents].  [Organisation] will look into the circumstances in more detail before taking any further action.  No further public statement will be made on this matter [until the circumstances have been investigated].
  • All team members should understand the need to refrain from further public engagement, even if customers, clients, advertisers, funders and industry bodies are tagged into the “debate”.  In rare cases it may be appropriate to make pre-emptive contact with key stakeholders to ask that they respect your position and not make any public comment on the matter.  If done at a senior level, most will understand the need to follow due process.
  • Make contact with the Individual, particularly if an employee, to tell them that no precipitate action will be taken and that any further investigation or process will allow them to be heard.  Depending on the circumstances, you might ask them to withdraw or edit their statement, at least pending further discussions.  However, we suggest you should avoid compelling or pressuring them to do so.
  • Ensure that any follow up investigation or action is conducted in accordance with internal policies and applicable law and regulation, such as the Employment Rights Act, the ACAS Code of Practice on Disciplinary and Grievance Procedures, and  the ACAS Guide: Discipline and Grievances at Work.  It is surprising how often organisations are panicked into ignoring their own policies, leaving an open goal for further action.
  • Line managers and department heads should be briefed on how to respond if employees complain, as when  a group of employees at Hachette UK objected to being asked to work on JK Rowling’s new children’s story, The Ickabog, because they disagreed with her views on transgender issues.  We suggest that the holding statement above can be adapted for this purpose. 
  • Any investigation or disciplinary process is likely to involve consideration of internal policies (particularly D&I and respectful working environment policies).  You should seek as far as possible to have tailored, rather than template, policies and ensure that they correctly reflect the law (for example in correctly reproducing the nine protected characteristics under the Equality Act). 
  • We also suggest that policies be drafted with an eye on the values of freedom of speech and diversity of thought and the potential for conflict of rights, such as employees’ rights to express and campaign for their political opinions.  An organisation’s policies and values should neither require Groupthink nor rule out the possibility of respectful disagreement.

Finally, social media pile-ons are unpleasant and often aggressive.  Remember if your agent, client or employee is being targeted, that this is an Individual with whom you chose to work.  Your response to a pile-on should always keep in mind the possibility that the mob may be mistaken.

[1] See the case of Maya Forstater v CGD Europe and others: 2200909/2019

[2] Gillian Phillip, a bestselling children’s author, was  sacked from the team writing under the “Erin Hunter” name after expressing support for fellow writer J. K. Rowling

[3] Actor, Laurence Fox was called a “disgrace” by Equity after expressing views about racism (or the absence thereof) in this country on Question Time .  Allison Bailey, an English barrister, was the subject of complaints after co-founding the LGB Alliance.  Without first discussing it with her, her chambers, Garden Court, tweeted that they were investigating Ms Bailey, implying that her behaviour warranted investigation .

[4] Forstater is in proceedings against her former employer, Fox won an apology from Equity, Bailey raised over £60,000 in under 24 hours to fund a claim against Garden Court and Stonewall