The defamation trial between the ex-spouses’ Johnny Depp and Amber Heard began in April 2022, when the actor filed a lawsuit against his ex-wife regarding the actress’s allegation against him back in 2018.

This trial has exceptional media coverage due to the popularity of the Hollywood stars and the complex background and the events that preceded this case. The trial, which is being held in Fairfax County, Virginia, is expected to last six weeks and is the second lawsuit involving abuse allegations connected to Johnny Depp and Amber Heard’s relationship, following a trial in the UK in 2020.

Defamation Lawsuit Against Amber Heard

Johnny Depp filed a defamation lawsuit against Amber Heard for 50$ million in March 2019, related to the published Article by the actress in Washington Post. In the article, Amber Heard discussed the treatment of women in sexual assault cases and referred to herself as a “public figure representing domestic abuse” she did not directly mention her ex-husband Johnny Depp, however, he was dropped from his role in Disney’s Pirates of the Caribbean franchise just a few days after the article was published. He claims the article caused damage to his professional career as an actor.

In the opening statement, Depp’s lawyers said that Heard wrongfully “presented herself as the face of the Me Too movement — the virtuous representative of innocent women across the country and the world who has truly suffered abuse” and that her “false allegations had a consequential impact on Mr. Depp’s family and his ability to work in the profession he loved.”

Johnny Depp and Amber Heard

In 2020, Johnny Depp sued The Sun’s publisher for libel over a headline where he was called “wife-beater.” Amber Heard testified in the trial, where she made 14 allegations of abuse against Johnny Depp. Even though Depp denied all of them, the judge decided that 12 had been proved to the civil standard and that The Sun’s headline was “substantially true.”

After the loss of this case, Amber Heard’s lawyers tried to get Depp’s defamation lawsuit dismissed however, the judge refused, referring to differences in U.K. and U.S. defamation laws and pointing out that Amber Heard was not a defendant in the case against The Sun. Afterwards, Heard filed a $100 million countersuit against Johnny Depp, where she claims that she was defamed when his legal team referred to her claims as “fake” and a “sexual violence hoax.”

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Role of Domestic Violence in This Case

According to the National Statistics Domestic Violence Fact Sheet, one in three women and one in four men have experienced some form of domestic violence, including slapping, shoving, and pushing.

For more severe physical assaults, one in seven women and one in 25 men have experienced abuse that resulted in injuries. When one or both partners are physically attacking the other, this creates a toxic environment that can be destructive. Over 4,000 women die each year due to domestic violence. Prosecutors often have a hard time pursuing domestic violence cases because victims aren’t willing to testify against the abuser and will not tell the truth about how they were injured.

According to Heard, Johnny Depp routinely became explosively angry and physically violent throughout their relationship. Heard and her lawyers said that she was subjected to “excessive” emotional, verbal and physical abuse during the “entirety” of the couple’s 15-month marriage. Her filings framed the iPhone incident as a repeat event, alleging that Depp subjected her to “excessive emotional, verbal and physical abuse” as well as “angry, hostile, humiliating and threatening assaults.”

However, the police officer, who was called to Amber Heard and Johnny Depp’s penthouse after a fight, testified that she did not identify the actress as a victim of domestic violence at the time, adding that she did not see any evidence of a crime, including broken glass or mess in the penthouse. Johnny Depp denied the allegation and was not charged with any crime.

Therefore, he testified that the couple frequently argued but said, “Never did I reach the point of striking Ms. Heard in any way nor have I ever struck any woman in my life.” Furthermore, during his testimony in the defamation case trial against his ex-wife, he explained that he was often physically assaulted by her, and according to him, he was the actual victim of domestic violence in their marriage. 

This case urges a further discussion about intimate partner violence, most commonly referred to as domestic abuse. Motivations for intimate partner violence in men and women are not significantly different.

Research by The National Library of Medicine shows that men and women who have committed intimate partner violence have similar reasons, such as control, revenge, anger, or jealousy. The evidence shown so far in the Depp v. Heard trial supports the possibility that both Depp and Heard were abusive during their relationship.

Defamation Under the Law in Virginia

According to the Law in Virginia, defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact. It includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity.

Truthful statements that harm another’s reputation will not create liability for defamation. To state a claim for defamation under Virginia law, a plaintiff must show publication of an actionable statement with the requisite intent. To be actionable, the statement must not only be false but defamatory; that is, it must ‘tend so to harm the reputation of another as to lower him in the estimation of the society or to deter third persons from associating or dealing with him.

Thus, to successfully prevail on a defamation claim, a plaintiff must prove all of these elements. Stated differently, “merely offensive or unpleasant statements” are not defamatory; rather, defamatory statements “are those that make the plaintiff appear infamous or ridiculous. Furthermore, in Virginia, the statute of limitations is 1-year for defamation. Code of Virginia§ 8.01-247.1 states, “Every action for injury resulting from libel, slander, insulting words or defamation shall be brought within one year after the cause of action accrued.

Defamation Per Se

Virginia recognizes that particular statements constitute defamation per se. These statements are so atrocious that they will be constantly considered defamatory and are assumed to harm the plaintiff’s reputation without further need to prove that harm. In Virginia, a statement that does any of the following things amounts to defamation per se:

  • attributes to the plaintiff the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, maybe indicted and punished;
  • indicates that the plaintiff is infected with a contagious disease;
  • attributes to the plaintiff unfitness to perform the duties of an office or employment of profit, or lack of integrity in the discharge of the duties of such an office or employment; or
  • hurts the plaintiff in his or her profession or trade.

Actual Malice and Negligence

Legal liability often requires, in addition to a bad act, a bad intent or state of mind; defamation is no different. A person cannot be held liable for publishing a false and defamatory statement alone; rather, depending on the nature of the statement and its subject, the publisher must have known that the statement was false or acted recklessly or negligently in failing to determine the falsity of the statement.

1964 decision of New York Times Co. v. Sullivan, the United States Supreme Court held that the freedom of speech protections in the First Amendment to the U.S. Constitution requires a stricter standard with respect to statements about public officials. The doctrine of the Sullivan case, which dealt with public officials, was expanded over the years to include all public figures.

Post-Sullivan, such defamation claims can only succeed if the defendant published the statement with “actual malice,” which means that the defendant either knew the statement was false or acted with reckless disregard as to whether or not it was true. This is typically a difficult standard to meet, and, practically speaking, often prevents public figures from pursuing defamation claims. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. 

Johnny Depp and Amber Heard

Virginia courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement does substantial harm to the reputation apparent. The actual malice standard applies in cases brought by private figures where the substantial danger to reputation is not apparent.

However, if the defamatory statements regard matters of public concern, even private figures must show actual malice to be awarded presumed or punitive damages. In effect, this makes defamation cases regarding matters of public concern more of a challenge to pursue, as compensatory damages—that is, the actual loss that can be directly attributed to the defamatory statement—are usually difficult to establish.

Legal Defenses to Defamation

Virginia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

If the statements do not meet the definition set out above, a claim may also be rejected if the statement is privileged and the privilege is not abused.  There are two types of privilege: absolute and qualified.  Absolute privilege exists only in narrow classes of cases: legislative statements, judicial proceedings, certain executive functions, certain statements among military officers, and statements to spouses. If the defendant has a privilege defense, the defendant probably has a qualified privilege. The nature of qualified privilege is broad.

The Virginia Supreme Court described it by stating: It extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty, and the privilege embraces cases where the privilege is not a legal one, but where it is of a moral or social character of imperfect obligation.

However, even if a qualified privilege applies, the defendant can lose the privilege.  If a privilege applies, the defendant is still liable if the defendant abused the privilege and the plaintiff proves by clear and convincing evidence that:

  • defendant knew the statement was false or made it with reckless disregard of whether it was false or not; or
  • the statement was deliberately made in such a way that it was heard by persons having no interest or duty in the subject of the statement; or
  • the statement was unnecessarily insulting; or
  • the language used was stronger or more violent than was necessary under the circumstances; or
  • the statement was made because of hatred, ill will, or a desire to hurt the plaintiff rather than as a fair comment on the subject; or
  • the statement was made because of personal spite or ill will, independent of the occasion the communication was made.

What Makes This Case so Complicated?

Defamation cases can be often difficult to prove, especially when parties are public figures which is the situation in this case. Moreover, the events that preceded this lawsuit make the case even more complicated and hard to prove.

The burden to prove that the article in Washington Post was a false statement made against Johnny Depp and this statement ruined his reputation is on the side of the plaintiff. Johnny Depp has already lost a defamation case in the U.K regarding the allegations of domestic violence, even though this case is under other legislation and other defended, it might affect the outcome of the final court decision.

The element of domestic violence plays an important role in the whole case; both parties claimed that they have been victims of domestic violence during their relationship. Therefore, the outcome of the case will depend on the evidence presented by both parties, so to win this case for Johnny Depp, the essential thing is to prove that the allegations made against him are false and damaged his professional career as an actor, while for the other party it is important to prove that there was an abuse against Amber Heard during their relationship.

Latest Updates From the Trial 

In the opening statements, which were broadcast on CourtTV, Heard’s lawyer, Ben Rottenborn, claimed that Heard suffered abuse that “took many forms,” including physical, emotional, and psychological. Rottenborn claimed that Heard did not write the headline herself, nor was she given final approval for it. However, the attorney alleged of the headline is true.

In her opening statement, Depp’s attorney, Camille Vasquez, reiterated the allegation that Heard fabricated her claims to elevate her career and notoriety amid the height of the #MeToo Movement. The first testimony was made by Johnny Depp’s sister, who testified that he was a victim of domestic violence since childhood, by his mother. His friend Isaac Baruch, testified in Johnny Depp’s defense, claiming that he has seen the couple only in two arguments before.

Johnny Depp took the stand on April 19, and said that the allegations of abuse leveled against him “were not based in any species of truth.” Depp alleged that Heard “has a need for conflict, that she has a need for violence, and that he thought that she was a danger to herself.

Following Deep’s days of testimony, Dr. Shannon Curry, a clinical and forensic psychologist hired by Johnny Depp’s legal team was called to the stand on April 26 and testified that she had diagnosed Heard with borderline personality disorder and histrionic personality disorder.

Depp ended his final testimony with the question if he was a victim of domestic abuse as Heard had said. Depp stated, “Yes, I am.” With Depp’s testimony concluded, the trial now awaits Amber Heard’s testimony as well as the testimony of potential witnesses such as Elon Musk and James Franco.

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