The recent libel judgment handed down in Depp II v News Group Newspapers Ltd  EWHC 2911 (QB) has made headlines around the world and has captured the attention of the public. It has also been a devastating personal blow for Mr Depp.
He was faced with a libel claimant’s nightmare scenario: a Court finding that the defamatory allegations made against him, in this case that he beat his then wife, Amber Heard, causing her significant injury and to fear for her life, were true. That is not to mention the having to pay for not only his own legal fees, but for those of The Sun as well (a total figure estimated to be in the region of £5 million).
Many have speculated the judgment will end Depp’s career in Hollywood. It was reported over the weekend that he has already quit the Fantastic Beasts franchise, apparently at the request of Warner Brothers.
The lockdown trial in July, dubbed ‘the trial of the century’, captivated many as salacious allegations went back and forth between Mr Depp and Ms Heard (pausing here, it’s important to note that Ms Heard was a witness for The Sun and not a defendant herself). Many of the shocking revelations would never have made the light of day if Mr Depp had not sued The Sun and one of its editors for libel after it published an article on 27 April 2018 entitled “GONE POTTY How Can J K Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?” (a version of the article can be found here). Indeed, many people were unlikely to even know about the allegations were it not for the suit. In the wake of the ruling (and during the hotly contested trial) many therefore asked themselves: why did Mr Depp sue? Prospective defamation claimants, anxious to protect their own reputation, may have looked at the messy Court proceedings with Mr Depp and asked themselves whether taking action was worth that risk.
But do all claimants run the risk of the Johnny Depp scenario? The short answer is no. The risks to a claimant come down to various factors, and each matter will come with its own strengths and weaknesses. There are, however, some ways to tell at a relatively early stage whether a defamation proceeding may do significantly more harm than good.
The impact of a truth defence succeeding
The reason that this loss was so devastating for Mr Depp was not simply because he was unsuccessful in his libel action, but because he was defeated by a truth defence. Mr Justice Nicol’s finding that he beat his wife, including on 12 specified and detailed occasions, is why many are speculating that Mr Depp may lose not only this case, but also his career.
When suing for defamation a defendant may (as in this case) seek to justify the allegations made by adducing evidence that they are substantially true. This can create a dual risk for claimants.
Firstly, a defendant will be able to air evidence of the defamatory allegation the claimant is suing over in public. For some claimants, the damage caused by that public evidence may mean that, even if successful, suing is not worth it (particularly, if the extent of the initial publication was limited or the allegations are likely to be forgotten about). Indeed, many commentators observed even before the ruling that the case was a ‘lose-lose’ for Mr Depp given the serious and salacious nature of the evidence adduced at trial. Even if he won, some believed his reputation would have been made worse by the evidence set out at trial than it would have been if he had not sued at all.
Secondly, and this is the nightmare scenario, if the defendant is successful then the defamatory allegation that might otherwise have not been believed, or heard, by everybody now becomes an judicial finding of the Court against the claimant. In Depp’s case, unless the decision is overturned on appeal (which seems unlikely given appellate courts’ general preference not to interfere with findings of fact a trial place is best-placed to make), it is likely he will forever be branded a wife-beater.
In some instances, even these risks will be worth it for a claimant whose reputation has been seriously affected by a defamatory publication. They may feel they have nothing to lose and/or that they simply cannot afford to allow an allegation to stand. However, for many claimants, it is something to carefully consider prior to issuing proceedings. This is particularly so where a case is likely to turn on the quality of live evidence, and potentially compelling witnesses are available to give evidence for the defendant.
Other ill-considered claims which ended in a similar way include Starr v Ward  EWHC 1987 (QB), in which the late comedian Freddie Star sued the defendant of accusing him of historic sexual abuse by Karen Ward. A year after a parallel criminal investigation had been dropped against Starr, the Court (again Nicol J) found the allegation to be substantially true. Starr reportedly fled to Spain, became a recluse and died four years later virtually penniless. Going back further, former Tory MP Neil Hamilton sued Mohamed Al-Fayed after Al-Fayed had accused him of accepting cash payments in exchange for him asking questions in parliament. The jury found that “Fayed had established corruption by Mr Hamilton on highly convincing evidence”. Owing a reported £3 million in legal costs, Hamilton declared bankruptcy in 2001, his political career in tatters.
Not all defendants, however, will rely on a truth defence to allegations. Often defendants will rely on more technical defences, such as publication on a matter of public interest (section 4 of the Defamation Act 2013), the common law defence of qualified privilege, or honest opinion (section 3 of the Defamation Act 2013). In these situations it is implicit that the defendant is not confident that they can prove that the defamatory imputations are true (or there is a more expedient way of defeating the claim), and therefore the risk of particularly damaging evidence coming out at trial is diminished (albeit not eliminated) and there should be no damning judicial finding.
What should claimants consider in the aftermath of Depp II before suing for libel?
The Depp decision isn’t a landmark decision by any means. You don’t need to be a lawyer to appreciate that a libel claim will fail if the allegations can be shown to be true. What the case does is serve as an illustration of the risk of suing for libel.
This is not to say that those who have been defamed should necessarily refrain from taking legal action. However, generally speaking they should avoid a ‘gung ho’ approach and carefully consider the risks of suing before asserting a claim. In particular, they should consider what defences are likely to be run and what evidence may be deployed against them at trial.
Claimants should not only consider whether they can defeat any truth defence, but more generally whether they want to air their dirty laundry in public – bearing in mind that the evidence is unlikely to confined to the defamatory allegations. For instance, a claim against (or concerning) a former partner will almost certainly involve considerable intrusion into both parties’ private lives at trial.
It is important to note that most defamation matters do not go to trial. In recent years there have been no more than a dozen libel trials per year, from an estimated 200-300 claims issued annually. The financial and reputational cost of losing can cause significant (sometimes even commercially fatal) harm to a publisher. Thus most claims – particularly those that are strong – are resolved prior to trial or, even without the need to issue proceedings. That may have been what Mr Depp was either hoping or expecting in this case. In many instances, a matter will be settled during the pre-action correspondence stage and there will be no need to sue and expose oneself to similar levels of risk, while still getting the resolution you seek. Sending a letter pre-action protocol letter will also allow a litigant to find out whether the defendant intends to plead a truth defence – and therefore what risks they would face if they did ultimately choose to sue.
Choosing the right lawyer
Defamation actions can be a minefield – however with proper advice from a competent lawyer, a litigant should be able to understand the unseen traps of litigation and be able to make an informed decision. When selecting a suitable lawyer, litigants should be particularly mindful of two things. Firstly, defamation is a highly specialised area of law, with a relatively small number of solicitors and barristers acting in the majority of cases. Whilst there is nothing preventing non-specialist lawyers from acting in defamation proceedings, many are reluctant to do so for good reason. If a litigant’s budget allows it, a specialist is recommended. This may lead to a quicker/more favourable resolution and may prove less costly in the long-term. Secondly, it is rarely a good idea for a litigant to instruct a lawyer simply because they come across as keen to sue, are saying what the litigant wants to hear and/or “believes in their case”. All decent lawyers are capable of being bullish, talking a case up and suing. A full and frank conversation about the pros and cons of legal action will better serve a client’s long-term interests.
This post originally appeared on the Brett Wilson Media and Communications Law Blog and is reproduced with permission and thanks.