Johnny Depp And Amber Heard Case Shows That Defamation Claims Are Risky. So Why Bring Them?

Contributing Author: Bryan Sullivan

In response to the Johnny Depp/Amber Heard trial, there has been substantial talk about defamation, with tabloids publishing increasingly incendiary headlines and parties involved in disputes being far more public with accusations and allegations on social media. Such public flogging of accusations and allegations may cause a person to become angry or resentful at what they believe are false statements being spoken about them, and they then want to go on the attack by bringing a defamation action. However, in most cases, defamation actions are difficult to win, and they usually involve a significant risk of blowback (as exemplified by the Depp/Heard trial).

Statements that are often the subject of defamation suits are opinions, which are not actionable as defamation even if what is said is insulting. Calling someone an idiot or stupid or even untrustworthy is stating an opinion and these types of remarks are not proper subjects of defamation claims. Even if you get past that dichotomy, many accusations and allegations are still opinion. For example, simply saying “I think” before a statement, may be an opinion. Defamation involves a false statement of fact, not incorrect surmise. This can create a significant issue of proof and many arguments can be made over the meaning of the words that were said that are the basis of a defamation claim. The Johnny Depp/Amber Heard situation demonstrates this perfectly—he won in the United States, but he lost the trial in England.

To add another layer of difficulty, a publicly known person bringing a lawsuit needs to prove malice, which is not an easy burden to prove. In the landmark case, The New York Times Co. v. Sullivan, the Supreme Court held that for a publicly known figure to prove defamation, the public-figure plaintiff must show that the false, defaming statements were uttered or written with “actual malice,” meaning the defendant must have said the defamatory statement “with the knowledge that it was false or with reckless disregard of whether it was false or not.” As the Johnny Depp/Amber Heard trial demonstrated, it’s not impossible to prove, however when suing a media outlet that was not involved in a personal dispute with the parties, this burden is more difficult to prove.

In addition to these elements, significant blowback can occur, especially because truth is a complete defense to defamation. So, during the discovery process, lawyers can go deep into a defamation plaintiff’s personal and/or business life to prove the truth of a statement. Depending on the issue, the plaintiff will be waiving their privacy rights in order to embark on a journey to expose what is true or not. Thus, it becomes very risky for a publicly known person to pursue the path to vindication. Court filings, testimony, and discovery motions are all public as a matter of law, and, in this day and age, every fact will be covered by the media. This gives the defendant a soapbox to constantly repeat the defamatory statement(s), as well as the opportunity to make further defamatory statements in court, which is a “privileged” setting where anything can be said without recourse due to the laws of litigation. So, bringing a defamation case could prolong the story and add to the accusations and allegations in the public. After all, there is still a lot of chatter in the public domain about the Depp/Heard trial, and it remains to be seen if either party can recover from the publicity they received because of this case.

As far as damages, in most cases, they are nebulous and incredibly difficult to prove. Johnny Depp and Amber Heard each pointed to lost acting roles (which, after an audit and expert analysis, could be quantifiable), but the average defamation defendant cannot generally point to such direct losses. Additionally, sometimes the defamation results in an immeasurable decrease in business and revenue over time, which is difficult to quantify.

And, even if you win, unless you successfully sue a defendant with deep pockets (e.g., media outlet), it is very hard to collect on an awarded judgment. Even someone who appears to have a high net worth might be able to shield themselves from paying in a timely fashion, or at all. This is because the judgment does not require the defendant to pay; rather, it gives the plaintiff a right to collect on it, but there are a voluminous set of rules and procedures that must be followed to collect on a judgment. So, at the end of the day, you may simply have a piece of paper to frame and hang on a wall. That may be enough for people who are looking for vindication. It will just cost a lot in out-of-pocket attorney’s fees to get that vindication, and it has been important enough to many publicly known people.

Most defamation lawsuits are not worth bringing. However, when the statements are so defamatory that they could bring down a company or ruin a career, and for someone who can afford the cost of such a claim, the risk is worth the reward, whether monetary or not.

Bryan Sullivan, Partner at Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all their business affairs. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements, and corporate structure documents on the dealmaking side.